The Supreme Court requires providing a prior hearing to the worker before disciplinary dismissal

The Plenary of the Social Chamber of the Supreme Court ("SC") has issued judgment number 1250/2024 dated November 18, 2024, which completely changes its doctrine and holds that employers are required to give a prior hearing to the worker before dismissing them for disciplinary grounds related to their behaviour or performance. All this is to allow workers to defend themselves against the accusations made against them.

Although many of the requirements (e.g., the time frame for the worker to respond, the manner of doing so, what circumstances can be considered a reasonable cause for not requiring the employer to grant this prior hearing, etc.) are yet to be defined, the following should be taken into account:

(i) The SC applies the principle of the prevalence of international law over domestic law and the control of conventionality, concluding that the fact that this procedural requirement is not included in article 55.1 of the Workers' Statute does not prevent the direct application of article 7 of Convention number 158 of the International Labour Organization (ILO).

(ii) The possibility for the worker to defend himself and/or be heard in the mandatory prior administrative conciliation does not prevent the SC from reaching this conclusion, considering that the mechanism of art. 7 of the ILO is more guaranteeing.

(iii) When initiating the procedure, special care should be taken with the legally and collectively agreed deadlines. In any case, the prior hearing should suspend the prescription period of the infringements.
(iv) The statements made by the worker in the prior hearing can be included in the disciplinary dismissal letter. In this way, it can be demonstrated that the employer has taken the worker's statements into consideration before making a decision.

(v) In the absence of specific regulation, it will be advisable to analogously apply the formal requirements of the prior hearing provided for the disciplinary dismissal of the union delegate.

(vi) In accordance with the principle of legal certainty, disciplinary dismissals that occurred before the publication of this judgment may invoke the exception of reasonableness. However, henceforth, when dismissing a worker, this prior requirement must be fulfilled.

(vii) What would be the consequence of non-compliance with this formal requirement? In the absence of a reasonable cause justifying this non-compliance, the recent judgment of the High Court of Justice ("HCJ") of Madrid dated July 24, 2024, indicated that, in the absence of a legal provision in Spain determining the unfairness of the dismissal, there may be a right to compensation for the damages and losses derived from this omission. However, previous judgments of the HCJ of the Balearic Islands on February 13, 2023 (rec 454/2022), of the HCJ of Extremadura on September 15, 2023, rec. 326/2023; and of the HCJ of Asturias on May 28, 2024, rec. 729/2024, declared the dismissal unfair. It will therefore be necessary to follow the evolution of case law in this area to see how this important issue evolves.