LEGAL ALERT. PRIOR HEARING TO THE EMPLOYEE BEFORE BEING DISMISSED FOR DISCIPLINARY REASONS.

On 18 November, the Supreme Court, sitting in plenary and unanimously, ruled that the employer must offer the employee the possibility of defending himself against the charges brought against him, before adopting the termination of the employment contract for disciplinary dismissal.

The basis for this change in the High Court’s criteria is the new interpretation of Article 7 of ILO (International Labour Organisation) Convention No. 158 of 1982 (in force in Spain since 1986), which is now understood to be directly applicable, without the need for any legislative change. This article establishes that:

“An employee’s employment shall not be terminated on grounds relating to his or her conduct or performance before he or she has been given an opportunity to defend himself or herself against the charges against him or her, unless the employer cannot reasonably be required to give him or her such an opportunity”.

It should be noted that the article itself provides for an exception to this requirement, which is that prior notification may not be required for justified reasons. In this regard, the judgment itself states that it will be necessary to consider the specific case in order to analyse whether or not this exception can be applied.

Compliance with this new requirement is only enforceable since the publication of the aforementioned ruling, and does not affect dismissals carried out prior to that date;
however, given the lack of clarity of the obligation, in terms of formalities, deadlines and consequences in cases of non-compliance, this currently generates great legal uncertainty for companies that intend to dismiss their employees for disciplinary reasons, as long as the requirements are not developed through case law or future legislative reforms.

The full sentence can be consulted at the following link.