Can your company claim interim wages back from the State?

When the claim applies and what requirements it involves

When an unfair dismissal trial drags on, a company may end up paying months of salary for a delay that is beyond its control. For these cases, the law allows companies to claim interim wages (salarios de tramitación) back from the State. It is a little-used mechanism, and its requirements often raise questions. A recent ruling by the Madrid High Court of Justice (TSJ), dated 16 July 2026, clarifies which requirements apply and when the deadline to file a claim starts running.

What are interim wages?

Interim wages are the wages that an employee stops receiving from the date of dismissal until notification of the judgment declaring the dismissal unfair.

Article 56.5 of the Workers’ Statute (ET) and Article 116 of the Law Regulating Labour Jurisdiction (LRJS) allow companies to claim these wages from the State when the judgment that first declares the dismissal unfair is issued more than 90 working days after the claim was filed.

What requirements must be met?

Under the ET and the LRJS, the company must prove:

• That the judgment is final (in other words, it can no longer be appealed).
• That more than 90 working days have passed between the filing of the claim and the first judgment declaring the dismissal unfair.
• That it has actually paid the interim wages to the employee.

The problem arises because Royal Decree 418/2014, which regulates the claims procedure, adds a further requirement: that the company has opted for reinstatement. In practice, this excluded companies that did not choose between compensation and reinstatement.

Can a company claim if it did not opt for reinstatement?

Yes, according to the Madrid High Court of Justice. In the case analysed, the company did not make its choice after the judgment became final. The employee then initiated irregular reinstatement proceedings (the procedure available when reinstatement does not take place or is not carried out correctly), which ended with a court decision declaring the employment relationship terminated and ordering payment of the interim wages.

The court concludes that, under the principle of normative hierarchy, a regulation such as Royal Decree 418/2014 cannot add requirements that the law does not provide for. Therefore, the only decisive requirement for the company to have standing (that is, the right) to file a claim is the actual payment of the wages. Having opted for reinstatement, or reinstatement having actually taken place, is not required.

When does the deadline to claim start?

The company has one year to file the claim. The ruling specifies that this period starts from the actual payment to the employee or from the moment the court orders the deposited amounts to be released, in other words, when the court orders the money previously deposited by the company to be handed over to the employee.

What companies should bear in mind

• Keep proof of payment and its date: it is the key requirement and marks the start of the deadline.
• Keep track of the 90 working days from the filing of the claim to the first judgment declaring the dismissal unfair.

Conclusion

The ruling strengthens the position of companies that have had to bear lengthy proceedings: what matters is having paid, not the option chosen.

Is your company checking whether any of its recent dismissals took more than 90 working days to reach judgment? Has it identified the payment date so as not to miss the one-year deadline?