This article addresses questions concerning the employee's prior hearing in disciplinary dismissals. Although the employee's right to a hearing is provided for in Article 7 of ILO Convention No. 158 (International Labour Organization), it had not been applied in Spain until the recent ruling of our Supreme Court in its judgment of 18 November 2024.

In that judgment, the Court established that, following its publication (18 November 2024), employees must be granted a prior hearing in disciplinary dismissal proceedings pursuant to Convention No. 158.

Consequently, failure to comply with this requirement may result in the dismissal being declared unfair.

Therefore, before addressing questions concerning the hearing, we must first explain when a dismissal qualifies as a disciplinary dismissal.

In Spain, the disciplinary dismissal of an employee must be the employer's last resort, as established by the legislation currently in force. Therefore, the employer's decision to terminate the employment relationship must be duly reasoned and justified in the dismissal letter.

 

 

What is a disciplinary dismissal?

A disciplinary dismissal is the unilateral termination of the employment relationship by the employer as a consequence of serious and culpable misconduct by the employee.

Disciplinary dismissal is governed by Article 54 of the Spanish Workers' Statute, which also lists the types of conduct that may constitute a breach of the employment contract.

The most common examples include:

- Repeated and unjustified absences from work or lack of punctuality.

- Verbal or physical abuse of the employer, co-workers or their family members.

- Habitual drunkenness or drug addiction where it adversely affects work performance.

Other forms of conduct not expressly mentioned in that article may also justify disciplinary dismissal, provided that they constitute serious and culpable misconduct by the employee.

This type of dismissal is the most serious employment sanction that can be imposed on an employee. The dismissal letter must therefore set out the reasons for termination, and those reasons must be capable of being duly substantiated.

In our experience, many disciplinary dismissals are declared unfair by the courts because the grounds are not sufficiently reasoned or substantiated, or because the sanction is disproportionate to the employee's conduct.

For this reason, we would emphasise that each individual case should be carefully analysed before a decision to dismiss is taken.

Furthermore, the so-called “employee's prior hearing” means that the employer must comply with an additional procedural requirement before terminating the employment relationship by way of disciplinary dismissal.

Article 7 of ILO Convention No. 158 clearly provides: "The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made."

How can this new obligation be complied with?

Although the provision does not specify the precise form or conditions under which the hearing must take place, based on case law and our experience, we recommend following the procedure below:

Steps for the employee's prior hearing:

- Notice to the employee: the employer must formally notify the employee in writing of its intention to dismiss them, setting out the relevant grounds. This notice should state the date, time and place of the hearing.

- In-person or written hearing? Although the hearing may be conducted orally and in person, as a general rule we recommend allowing the employee between 3 and 5 working days to submit written representations concerning the grounds for dismissal. This makes it possible to provide evidence of those representations before the courts in the event of a dispute.

- Right of defence: the most important requirement is to safeguard the employee's right of defence. The employee must have the opportunity to present their arguments, submit evidence or propose witnesses.

According to the case law referred to above, there are circumstances in which, on grounds of reasonableness, an employer cannot be required to provide this procedure before proceeding with the dismissal. These are generally cases involving extreme urgency, practical impossibility, particularly serious circumstances, etc.

Following the hearing with the employee, the employer will decide whether ultimately to terminate the employment contract by disciplinary dismissal, impose a less severe sanction or, in other cases, take no disciplinary action against the employee.

Once the hearing has taken place and there are sufficient grounds for the employee's disciplinary dismissal, the employer must notify the employee of the termination of the employment contract by means of a dismissal letter in accordance with the Spanish Workers' Statute and the applicable Collective Bargaining Agreement.

Does the employee have the right to challenge the dismissal even if the hearing has taken place?

Yes. If the employee considers that the dismissal is unlawful, they must file a conciliation claim (“papeleta de conciliación”), and the matter may ultimately be decided by the courts. Furthermore, at present, even if the employee waives the opportunity to submit representations, such waiver does not prevent them from subsequently filing a conciliation claim.

In conclusion, recent case law requires an employee hearing as a preliminary step before dismissal, and failure to comply with this requirement may result in the dismissal being declared unfair. We therefore recommend that, before taking any decision, the circumstances and background of each individual case be reviewed by a specialist adviser in order to ensure compliance with the applicable legal requirements.

At Sander Santos & Partners, SLP, we are at your disposal to provide specialist advice to facilitate the understanding and management of employment-related procedures, thereby helping our clients optimise their employment-related decisions.

For further information or personalised advice, please do not hesitate to contact us.

Author:

Beatríz Alcaine
Payroll Administrator
info@sspartners.es
Tel: (+34) 951 12 13 06
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