In a recent ruling, the Supreme Court has changed its doctrine on the procedure for executing disciplinary dismissals. From now on, Spanish companies must hear the employees before notifying them of the disciplinary dismissal, except in cases in which the company cannot reasonably be required to do so.

In its ruling of November 18, 2024, the Supreme Court (SC) has modified its doctrine by concluding that before a company executes a disciplinary dismissal (with an exception that we will see below) it is necessary to offer the employees the possibility of defending themselves against the charges brought against them, in application of article 7 of Convention number 158 of the International Labor Organization —adopted in 1982 and ratified by Spain in 1985— (the Convention).

This article establishes the following:

“An employee’s employment relationship shall not be terminated for reasons related to his conduct or performance before he has been given an opportunity to defend himself against the charges brought against him, unless the employer cannot reasonably be requested to grant him this opportunity”.

Until now, the majority doctrine had understood that Spanish legislation complied with the Convention without the requirement of a hearing prior to disciplinary dismissal except in the cases provided for by the law or the collective bargaining agreement (prior hearing of union delegates, contradictory proceedings with the legal representatives of the employees or when provided for in the applicable collective bargaining agreement).

However, in its novel ruling, the SC changes its criterion, justifying it in normative modifications of the premises on which the previous doctrine was based. It has concluded that the Convention is directly applicable in Spain “as it is a provision that must be qualified as complete or automatically applicable, without the need for implementing rules to be issued by Spain, as its terms are sufficiently and duly specified”. The SC rectifies by stating that the Convention cannot be considered to be complied with in Spain because the dismissed employees can resort to the employment courts and, in a mandatory way, request an administrative conciliation prior to the judicial procedure, so that the dismissal decision can be reviewed: the objective of the Convention is to allow the employee to be heard by the company, to avoid, if necessary, the execution of the dismissal.

Although the SC holds that in order to comply with the article in question “it is sufficient, simply, to allow the employee to defend himself against charges regarding his conduct or work” and that “it cannot be said that such a provision requires legislative development”, different questions arise that will have to be resolved by judicial doctrine or collective bargaining agreements (or, time will tell, by a future legislative change). The most relevant questions are discussed below, for the standard cases in which the applicable collective agreement did not already establish this procedure:

How should the prior hearing be carried out?

Article 7 of the Convention does not establish a specific way to carry out the procedure and the SC mentions that “it is sufficient that the employee is given the opportunity to be heard”.

The most recent rulings on the matter had advocated the possibility of carrying out the procedure orally, provided that the charges are explained in detail and the employee is allowed to defend himself. We refer to:

    • The judgment of October 14, 2024 of the Superior Court of Justice of Extremadura (SCJE), who ruled that a previous meeting in which the facts were presented to the employee and she had the opportunity to justify herself complied with the requirements of the Convention, since it does not require a specific formality.
    • The judgment of April 28, 2023 of the Superior Court of Justice of Madrid (SCJM) who postulated that a written communication is not required, as long as the company explains the charges clearly to the employees and allows them to present allegations and evidence before the body that has the final decision to dismiss.

However, for the company to be able to prove that it complied with the procedure verbally, it is advisable to document it.

Is it necessary to carry out the prior hearing also if the employee is affiliated to a trade union?

In this case, it will be necessary to make two communications, one to the employee concerned and the other to the union delegate, to comply, respectively, with article 7 of the Convention, which establishes the obligation to hear the interested party, and with article 55.1 of the Workers’ Statute (WS), which provides for a prior hearing of the union delegate. These are two different procedures with different purposes: the defense by the employee himself in the first one and the defense by the union delegate in the second one.

What period should the employees be given to present allegations?

Article 7 of the Convention does not contemplate either the period for this hearing. The cited rulings of the SCJE and SCJM validated a prior meeting with the employees in which the company clearly stated the facts that were the basis for the subsequent disciplinary dismissal, offering them the possibility of defending themselves, without a specific requirement in terms of hours or days.

It should be recalled, however, that the SC, in its ruling of July 12, 2006, stated that 24 hours could not be time enough hear the union delegate prior to the dismissal of an affiliated employee.

While the judicial doctrine regarding the new prior hearing procedure is being developed, it will be necessary to evaluate in each case what may be a reasonable period to offer the employees the possibility of defending themselves against the charges brought against them under the terms of the Convention.

Under what circumstances may the company not be required to hold a prior hearing?

Article 7 of the Convention establishes as an exception to the mandatory nature of the procedure, that “the employer cannot reasonably be requested to grant this possibility”. In the case that has changed the management of the dismissals, the SC precisely applies this exception for the very fact that prior to this ruling the procedure could not be required (and would be applicable to all disciplinary dismissals executed prior to this judgement).

However, the undefinition of this exception will surely give rise to multiple interpretations and will vary from case to case.

Indeed, the SCJM, in the referred ruling, states that the reasonableness judgment is a sort of proportionality judgment, so that the effects for both parties of the procedure must be compared and, if it is determined that it would imply a disproportionate sacrifice for the employer, the prior hearing will not be necessary. An example of this situation could arise when there is an immediate need to terminate the employment contract to avoid damage (personal or material) or destruction of sensitive documentation, which could not be remedied with a preventive measure, for example, such as a paid leave of absence while the procedure is being carried out.

What are the consequences of not carrying out this new prior hearing procedure?

One of the most important questions is whether the absence of the hearing procedure will be classified as a breach of form of the dismissal and, therefore, in accordance with article 55, paragraphs 4 and 5 of the WS, will lead to its unfairness or whether it may even entail its nullity.

The cited ruling of the SCJM offers a curious solution (although it is not applied in the case in question) consisting of the determination of an indemnity for damages in cases in which the dismissal is declared unfair for reasons that the employee could have alleged in the hearing prior to the dismissal, which could have prevented it. This compensation, states the SCJM, could consist of “the wages lost up to the time of the trial hearing in which the employee had the opportunity to explain the reasons, since such hearing should have been held before the dismissal”.

We will have to keep a close eye on the judicial doctrine that will be resolving the doubts raised by this important change in the case law of the SC, which has marked a turning point in the management of disciplinary dismissals in Spain.

Julio Alemán de Francisco