The retraction of dismissal is the employer’s unilateral decision to cancel a dismissal letter that has already been communicated to the employee. It usually happens when the company notices a procedural defect and tries to correct it by serving a new dismissal days later. The question is whether that manoeuvre is legally effective and what happens to the employee’s rights in the meantime.
The answer is provided, among other rulings, by the judgment of the High Court of Justice of Aragón of 26 September 2025, which we analyse in this article together with the limits of an employer’s retraction, its effects and the steps to avoid costly mistakes.
What a retraction of dismissal is and why it happens
Dismissal is one of the grounds for terminating an employment contract (Article 49.1.k of the Workers’ Statute, in Spanish). In a disciplinary dismissal, the employer must give written notice stating the facts that justify it and the date on which it takes effect (Article 55.1 of the Workers’ Statute, in Spanish).
With a retraction, the employer tries to go back and keep the employment relationship alive. It usually does so because it detects errors in the dismissal letter: insufficient reasoning, missed deadlines, an incorrect classification of the dismissal or defects in prior steps, such as the hearing of the employee.
The case decided by the Aragón High Court
According to the facts set out in the ruling:
- On 14 December 2023, the company served a first dismissal with immediate effect.
- A few days later, it noticed a procedural defect linked to the preliminary hearing and cancelled the notice.
- It re-registered the employee with Social Security, held the hearing and, on 29 December 2023, served a second dismissal.
- The employee challenged only the first dismissal. The company argued that it had no effect because it had been retracted and that the second one, which was not challenged, was the only valid dismissal.
The legal key: the effectiveness of the first dismissal
The court examined whether the first dismissal, despite the employer’s retraction, had full legal effect. It concluded that a dismissal produces legal effects from the moment the employee receives it, unless the employee expressly accepts the retraction. Consequently, the first dismissal was effective, and the employee’s claim was valid and had not expired.
Grounds for the decision
The judgment relies on the case law of the Supreme Court on the impossibility of unilaterally revoking a dismissal that has already terminated the relationship. It can be summarised in three ideas.
- Dismissal is a receptive act: it takes effect when the employee becomes aware of it. From that moment, the employer cannot cancel it on its own.
- Restoring the relationship requires consent: a retraction requires the employee’s express acceptance. If the employee does not give it, the dismissal remains effective, even if the company registers the employee with Social Security again or pretends that the relationship continued. The employee’s refusal to return cannot be treated as resignation or abandonment.
- Formal regularisation does not cure the initial dismissal: re-registration with Social Security and holding a later hearing are attempts at regularisation, with no automatic effect on the termination of the contract.
When an employer can validly retract
There are two situations:
- Before the effective date. If the dismissal has not yet taken effect because it was served with a future date, the employer can retract before that moment. An example is the 15-day notice period of an objective dismissal (in Spanish).
- With the employee’s express acceptance. It must be clear and verifiable.
In both cases, the employment relationship is never actually broken, and the employer may serve a new notice with the required guarantees.
Retraction and new dismissal: not the same thing
| Valid retraction | New dismissal | |
|---|---|---|
| Timing | Before the effective date or with the employee’s express acceptance | After the relationship has actually ended |
| Effect on the first dismissal | It is cancelled | It remains effective |
| Nature | The same employment relationship continues | An independent act that does not invalidate the first one |
Consequences for the employer and the employee
For the employer
- A unilateral retraction without acceptance is invalid.
- The first dismissal keeps its effect, together with the defects the employer was trying to correct, which may lead to it being classified as unfair (Articles 55 and 56 of the Workers’ Statute, in Spanish).
- The second dismissal does not, by itself, cure the first.
For the employee
- The employee keeps the right to challenge the first dismissal.
- The expiry period (caducidad) is twenty working days (Article 59.3 of the Workers’ Statute and Article 103 of the Social Jurisdiction Act, both in Spanish). In the case analysed, it runs from the first dismissal, regardless of the retraction or the new engagement.
- A request for prior conciliation or mediation suspends the period (Article 65 of the Social Jurisdiction Act, in Spanish).
Classification and effects of dismissal
A dismissal can be fair, unfair or null (Articles 55 and 56 of the Workers’ Statute and Article 108 of the Social Jurisdiction Act, in Spanish):
- Fair: the breach is proven and the termination is upheld, with no severance.
- Unfair: the breach is not proven or the formal requirements are not met. The employer chooses between reinstatement or compensation of 33 days’ salary per year of service, capped at 24 monthly payments, with transitional rules for contracts entered into before 12 February 2012.
- Null: the dismissal has a discriminatory motive, breaches fundamental rights or affects a case of reinforced protection. It leads to immediate reinstatement with payment of the salaries not received.
Practical recommendations for companies and HR departments
- Review the letter before serving it. An error in the wording or procedure can turn a disciplinary dismissal into an unfair one.
- Avoid unilateral retractions. If an error is detected after the notice is served, it can only be corrected with the employee’s express acceptance or before the effective date.
- Document any retraction in writing. The acceptance must be clear.
- Comply with prior steps. Review the procedural requirements of a disciplinary dismissal before serving it.
- Seek legal advice beforehand. A prior analysis avoids mistakes that cannot be corrected afterwards.
The retraction of dismissal is a complex issue that requires careful analysis of employment legislation and case law. A single procedural error can turn a valid dismissal into an unfair or null one.
At Suárez de Vivero, we have a team specialised in Employment Law that advises companies on the proper management of dismissals and the prevention of legal risks.
Contact our team to receive personalised advice and guarantee the legal certainty of your employment decisions.
Frequently asked questions about the retraction of dismissal
Can a company cancel a dismissal that has already been served?
Only if the effective date has not yet arrived or if the employee expressly accepts the retraction. Outside those cases, a dismissal that has been served takes effect, and the employer cannot revoke it unilaterally. The acceptance must be in writing.
What happens if the company registers the employee with Social Security again?
Re-registration and holding a preliminary hearing after the dismissal do not invalidate the initial dismissal. According to the Aragón High Court judgment of 26 September 2025, they are attempts at regularisation with no automatic effect on the termination.
What is the deadline to challenge a dismissal?
Twenty working days from the day after the dismissal took place (Article 59.3 of the Workers’ Statute and Article 103 of the Social Jurisdiction Act, in Spanish). In the case analysed, it runs from the first dismissal. A request for prior conciliation or mediation suspends the period (Article 65).
What happens if the employee challenges only the second dismissal?
According to the judgment, the first dismissal was fully effective and the second is an independent act that does not invalidate it. If the first dismissal is not challenged in time, the claim against it may expire. It is advisable to assess with legal advice whether to challenge both.
What can the company do if it detects an error in the dismissal letter?
It can obtain the employee’s express acceptance of the retraction in writing. If it does not obtain it, it can acknowledge that the dismissal is unfair and deposit the compensation with the Social Court within 48 hours, which limits back pay (Article 56.2 of the Workers’ Statute, in Spanish). In any event, a prior legal analysis is advisable.
What is the difference between a fair, unfair and null dismissal?
A fair dismissal proves the breach and upholds the termination without severance. An unfair dismissal fails to prove the breach or to meet the formal requirements, and leads to reinstatement or compensation. A null dismissal breaches fundamental rights or cases of reinforced protection, and requires reinstatement with back pay.
Can the company retract during the notice period of an objective dismissal?
The law requires a notice period of fifteen days (Article 53.1.c of the Workers’ Statute, in Spanish), so the effective date falls after the notice is served. According to the case law examined, a retraction served before that date may be valid, although each case requires an individual analysis.
