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Day of Grace in the Social Jurisdiction

In Spain, it is well known that there is a time limit for actions against dismissal which expires twenty business days from the effective date of the dismissal, as required by Article 59.3 of the Workers´ Statute (Estatuto de los Trabajadores).

Nevertheless, many people are still unaware of certain aspects of the deadline for dismissal claims. With this Article, we seek to remind the reader of the content of the judgment of the Supreme Court to unify the existing doctrine referred to the deadline for claims against dismissal.

In the case analyzed by the above judgment, the dismissed employee submitted the claim against the dismissal on the 21st business day counted from the date of effect of the dismissal. Therefore, should it be considered submitted after said deadline or not?

In order to answer this question, it is necessary to remember that the Supreme Court has repeatedly applied analogically Article 135.1 of the Ley de Enjuiciamiento Civil to the lawsuits of the labor branch, allowing claims to be presented before the Court on the twenty-first business day before 3.00 p.m., that is, on the “day of grace”. Therefore, it is clear that claims presented on the day of grace are accepted and considered within the legally conferred term.

However, as in the case analyzed by the Supreme Court, what would happen if, instead of a claim, a pretrial stage document (papeleta de conciliación) is presented on the “day of grace”? In this case, the Supreme Court ruling likened the papeleta de conciliación to a claim, and, therefore, this pretrial stage document was deemed to have been submitted on time, as it was presented on business day number 21, and before 3.00 pm.

After determining that the papeleta de conciliación may be presented on the day of grace, we encounter another problem, which is that after the attempted conciliation the deadline of 20 business days to present the claim is resumed, deadline within which the worker must make the claim. However, in the case of the above judgment that “day of grace” had already been used up, as already mentioned. In this regard, the Supreme Court recalls that the presentation of the papeleta “freezes” the deadline. Therefore, if the claim was presented on the same day the act of conciliation was conducted, the claim would have been presented on time, because the resumption of the deadline never took place.

In short, an employee has twenty business days and fifteen hours to make a claim against dismissal. However, at Lexland we recommend not to wait until the end of the deadline to submit the papeleta, as it is often desirable after the conciliation to make modifications to the court strategy and it is very common to add or delete information on the claim. At Lexland, we would be pleased to advise you on the best strategy to follow in such cases.

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