Reduction for "shielding"

Shielding against dismissal

In principle, if a company dismisses an employee for disciplinary reasons [ET, art. 55.5. b] or for objective causes [ET, art. 53.4. b] who has requested or is enjoying reconciliation rights (such as a reduction of working hours for legal guardianship), the dismissal will be void, unless it proves its justification for reasons unrelated to the exercise of that right.

This reinforced protection exists, but does not operate automatically. For example:

• A female worker requested a reduction of working hours after learning about the company's economic situation and the imminent nature of her dismissal, a circumstance that had been communicated to her months earlier in an informative meeting. The request was not based on reconciliation needs, but on an attempt to shield [TSJ Seville 06-06-2025].

• A male worker requested a reduction of working hours minutes before the meeting in which he was going to be informed about his dismissal, after receiving a corporate communication announcing workforce reductions and already being scheduled for an individual meeting with his superior [TSJ Madrid 30-09-2025].

The use of rights with reinforced protection against dismissal is an abuse of law when the request is not exercised according to its own purpose (that of reconciling work and personal life). In both cases:

• The request is made after being informed of the imminent dismissal and without proving any new relevant family circumstances that could justify the worker's request at that time.

• Therefore, the dismissal voidance is ruled out, despite the request for a reduction of working hours, and the conflict is solely focused on the discussion of unfair dismissal.

Fraud

The company must demonstrate that the exercise of the right to family and work reconciliation is an apparent action by the worker to shield against the company's decision. This places the worker in a fraudulent act that prevents the termination decision from being declared void [TSJ Las Palmas 08-06-2023]. To do this, the company must prove, through a joint assessment of evidence, that:

• The termination decision and its cause —objective or disciplinary, as appropriate— were previous and completely unrelated to the request for reduction.

• The employee knew or could reasonably have known about that decision, or at least the imminent nature of the termination, before requesting the reduction (for example, by being informed in meetings, internal communications, or previous restructuring or closure processes).

• The request is not accompanied by a new reconciliatory need, nor by new family circumstances that explain its exercise at that specific time.

• There is little time between the termination decision and the shielding.

In this sense, it is very important to document all the steps prior to the dismissal:

• If written record of the termination decision and its cause - economic, organizational, or disciplinary - was made, even if it had not yet been communicated to the worker, it will serve as evidence. For these purposes, internal emails between Management, HR, or the area manager constitute valid evidence.

• It will also serve as evidence if, in the face of a negative economic situation, a closure of a productive unit, or a restructuring process, this was notified to those affected in a general manner or by areas through informative meetings or corporate communications.

• When the process affects specific positions, it is advisable to document that the worker's position is included in the ERE through organizational charts, amortization reports, internal lists, or coordination emails. Likewise, it is advisable to inform the RLT about the forecast of position amortizations in the next quarter.

Ultimately, if the company has documented all the aforementioned steps, it will be able to minimally prove the existence of objective or disciplinary reasons that motivate its decision to terminate the contract and that are unrelated to the worker's request for the right to conciliation.

On the other hand, if an employee is absent on the scheduled day for dismissal or the day before, the company can immediately send the dismissal letter by burofax, ensuring that the sending time is prior to any subsequent request for a reduction of working hours that the employee may make.

Other types of protections

This doctrine to prevent protections is not limited to the reduction of working hours due to legal custody. If other protected rights are used in a deviated manner as a defensive reaction to a foreseeable or known termination, there may also be legal fraud or abuse of rights by the workers, and in those cases, the dismissal nullity is equally applied.

This is applicable, among other cases, to the following:

• Conciliation rights other than working hour reduction (schedule adjustment, leave for child care or care of a family member...).

• Union protections (if a union delegate is appointed, a member of the works council, or even in the case of an electoral candidacy).

For example, the courts [TSJ Basque Country 01-07-2025] have rejected nullity considering various protected factors - union activity, electoral candidacy, and previous working hour reduction situation - as it was proven that the worker was well aware of the reasons and scope of the collective dismissal, had participated in its negotiation, and their position was included from the beginning in the list of affected individuals.

Thus, the dismissal of a candidate in trade union elections is not void if the company can prove that the decision was already made before knowing about their candidacy. In another recent case, the dismissal was not declared void for the following reasons:

• An internal email had been sent from Human Resources including the names of the workers who were going to be dismissed.

• After these emails - and before the publication of the candidacy - the company had already contacted their external advisor to prepare the dismissal notifications.

• Although the notification was ultimately made after the knowledge of the candidacy, it was proven that the intention to dismiss was prior, so the trade union freedom was not considered violated.

Ultimately, when a right is exercised outside its proper purpose and as a defensive reaction to an already decided or imminent dismissal, there is a misuse of that right that prevents the automatic nullity of the company's decision. In these cases, the automatic cause of nullity is no longer valid, and the dismissal can be classified as unfair, with the consequent option for the company between reinstatement or payment of the legal compensation (33 days of salary per year worked with a limit of 24 monthly payments).