On the 18th of November 2024 the Supreme Court delivered a novel judgment modifying the formal requirements for disciplinary dismissal (Judgment no. 1250/2024). Until now, the only formalities that businesses were required to observe when carrying out a disciplinary dismissal were those set forth in Article 55 of the Spanish Employees’ Act (Estatuto de Trabajadores) (in essence, the tendering of a letter to the employee stating the grounds for dismissal, except in those cases in which the applicable collective agreement (convenio colectivo) establishes additional requirements).
In its judgment, the Supreme Court deems that, in consideration of the changes to the legal regime regarding the termination of employment contracts which have been introduced over the years, it has become necessary to reformulate the interpretation of Article 7 of Collective no. 158 of the International Labour Organisation of 1982 in light of current regulation. This Article sets forth that “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, unless the employer cannot reasonably be expected to provide this opportunity.” The High Court understands Article 7 as constituting a provision with direct application, on the grounds of being sufficiently clear and concrete in its terms for it to be automatically applicable, without the need for further regulatory development.
On the basis of this Article, the High Court justifies the need to carry out a preliminary hearing with the employee “before or at the time of [disciplinary] dismissal”, thereby allowing them to express their opinion regarding the grounds put forth by the business to justify the decision to terminate their contract.
The Supreme Court clarifies that this procedure of preliminary hearing ought not to be confused with other rights that correspond to the employee, such as challenging the dismissal or holding a conciliation hearing, these being measures after the dismissal which are in no way related to the defence that the employee may present to the business to refute its allegations so that the dismissal may be overturned.
However, the judgment fails to state the legal consequence of omitting the requirement to hold a preliminary hearing. Being a merely formal requirement, it would appear that non-compliance with this procedure would result in the dismissal being rendered inadmissible, rather than null and void. Other questions which will need answering in the future relate to the way in which this procedure of preliminary hearing must be held: orally? How long must the business give to the employee to provide their defence plea? As we may see, the judgment raises a series of questions regarding the practical application of this formal requirement, which we will surely see resolved in the coming months.
Joan Lluís Rubio
Vilá Abogados
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20th of December 2024
