Spain: The “necessary” hearing of the employee prior to his/ her disciplinary dismissal

Recently, several court rulings have been handed down on the alleged obligation to comply with the prior hearing of the worker in cases of disciplinary dismissal. These rulings may change the procedure to be followed in future dismissals.

In Spain, Article 55 of the Workers’ Statute (onwards WS) provides that, if the case appears that an employee is a legal representative of the workers or a trade union delegate, a contradictory file shall be opened in which the interested party and the other members of the legal representation or the trade union delegates of the corresponding trade union section shall be heard in order to process the disciplinary dismissal.

Apart from these cases, the WS does not contain a provision for the processing of a contradictory file or a prior hearing for the imposition of the penalty of disciplinary dismissal. In the bargaining collective agreements, on the other hand, there are different formalities for the imposition of the sanction of disciplinary dismissal, without all of them requiring a prior hearing of the employee.

Article 7 of the International Labour Organisation (ILO) Convention No. 158 concerning Termination of Employment promoted by the Employer, adopted in Geneva on 22 June 1982 and ratified by Spain, provides, in cases of termination of the employment relationship for reasons related to the conduct or performance of the employee, the obligation to offer him/her the possibility of defending himself/herself against the charges brought against him/her, unless the employer cannot reasonably be required to grant him/her this possibility.

The interpretation of this article has given rise to a number of recent judicial pronouncements:

• On the one hand, Judgment No. 68/2023 of 13 May 2023 of the High Court of Justice of the Balearic Islands deals with a case of disciplinary dismissal processed without the prior opening of a contradictory file, which was not provided for in the law or in the applicable Convention. The Court understands that the lack of a hearing on the alleged facts, apart from entailing a manifest breach of article 7 of ILO Convention 158, implies that the investigation prior to dismissal does not meet the guarantees established in the European Union Framework Agreement on harassment and violence at work, of 26 April 2007, and that, therefore, the dismissal must be declared as unfair.
• Ruling No. 425/2023 of 28 April 2023 of the High Court of Justice of Madrid, on the other hand, ratifies the validity of the disciplinary dismissal without hearing the worker in a case in which this obligation was not provided for in the applicable agreement.

Although it may seem that the doctrine of the two judgments is contradictory, it is not, in fact, because the aforementioned judgment of the High Court of Justice of Madrid also considers that the prior hearing is compulsory. Furthermore, this judgement contains a series of guidelines for the application of this obligation, among which we can cite the following:

• The hearing must be prior to the termination of the employment relationship, ruling out that the letter of dismissal and the subsequent judicial process can be interpreted as complying with the mandate of Article 7 of the ILO Convention.
• The minimum conditions for this requirement to be considered fulfilled are, according to the ruling, that the employee is informed about the charges that the company intends to include in the dismissal letter and that he/she is allowed to make allegations and evidence before the responsible body of the company for adopting the final decision in due time. Written form or other specific formalities are not required.
• The judgement also interprets the exception to the prior hearing obligation as a test of reasonableness and proportionality, analysing and comparing the effects of the different options for both parties. If it is concluded that compliance with this procedure would lead to a disproportionate sacrifice of the employer’s interests, the omission of the procedure should be considered reasonable.
• As for the consequence of non-compliance with this procedure, when it is reasonably required, the aforementioned judgment understands that it is not a requirement whose non-compliance is considered by Spanish law to constitute unfair dismissal, except in cases of dismissal of a legal representative or trade union delegate or when it is a formal requirement imposed by the applicable collective agreement. Failure to comply with this requirement results in the right to compensation for breach of an obligation, under Article 1101 of the Civil Code, so that the employee would be entitled to be compensated for damages for non-compliance with this requirement. Specifically, if the dismissal is subsequently declared unfair for reasons that the employee alleged at the time of the trial and that he could have alleged in the prior hearing, a compensable damage would appear, which can be translated into an additional compensation to that of the unfair dismissal, which could even consist of the wages lost from the dismissal until the time when the trial was held and the employee had the opportunity to detail the grounds for his/her opposition.

This ruling of the Madrid High Court of Justice should not be understood as a general authorization for companies to notify disciplinary dismissals by omitting the prior hearing in those cases in which it is not provided for either legally or conventionally; on the contrary, it considers that this hearing is generally mandatory, as the Catalan High Court of Justice has also stated. In any event, it will be the Supreme Court who will finally decide, in view of the silence of Spanish legislation on the matter, whether the worker must be given a prior hearing before being dismissed for disciplinary reasons.