Important case law change on disciplinary dismissal procedure in Spain based on article 7 of ILO Convention 158
By Francisco Javier Gómez Abelleira, Universidad Carlos III de Madrid, IR Share national expert for Spain
Spanish domestic law does not require that a disciplinary dismissal (i.e. a dismissal for reasons related to the worker’s conduct or performance) be preceded by a prior hearing of the employee (there are some exceptions to this rule, for instance if the employee is a member of the works council). The only formal requirement is written notice (the so-called “letter of dismissal”) to the employee prior to the effective date of the dismissal. It is true that the courts have been requiring that the letter be exhaustive and complete, with a perfect description of the facts for which the employee is being dismissed. It is also true that the employee can challenge the employer’s decision before a labour court. But the fact is that, under domestic law, the employee does not have the right to defend himself against the company’s accusations before receiving the dismissal letter. It is also important to note that the company’s dismissal decision is immediately enforceable and that, in general terms, an unfair dismissal (as opposed to a null and void dismissal, which occurs in cases of discriminatory dismissal or dismissal violating fundamental rights) does not give the employee the right to be reinstated, since the choice between reinstatement or compensation is up to the company.
A recent ruling adopted on 18/11/2024 by the Social Chamber of the Supreme Court, in plenary session, will oblige companies to follow a prior hearing of the employee before any disciplinary dismissal. The rationale for this change is found in article 7 of ILO Convention 158, which states: “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.” This Convention has been in force in Spain since 26 Apr 1985. However, it is only very recently that some regional courts have begun to consider the direct application of Article 7 of the Convention, displacing the domestic law. The controversy has finally reached the Supreme Court, which has issued a ruling that has nationwide effects.
In this ruling, the Supreme Court changes its previous doctrine, which dated back to the late 1980s. This doctrine held that the comprehensive dismissal letter system met the requirements of Article 7 of the Convention and that this article could not be considered directly applicable without a legislative intervention. The Court now considers that Article 7 of the Convention is a directly applicable provision. The Court reasons as follows:
“this Chamber holds that its direct application is appropriate since it is a provision that must be qualified as complete or automatically applicable, without the need for implementing rules to be issued by Spain, since its terms are sufficiently and duly specified. The requirement it establishes is very specific and of general scope, since, taking into account the very purpose pursued by its text, it extends to all situations in which the employer intends to impose on the employee the termination of the employment contract by disciplinary dismissal, and therefore does not require further regulatory development, since it simply suffices to allow the employee to defend himself against the charges about his conduct or work. Therefore, it cannot be said that such a provision requires legislative development.”
As of the date of publication of this judgment, any disciplinary dismissal must be preceded by a hearing of the employee. Since the law does not regulate this prior hearing, it may be understood that it may consist of a written or oral procedure, as the law does not regulate this prior hearing, it may be understood that it should consist of a written or oral procedure, provided that it is guaranteed that the worker can express his opinion on the facts that he is accused of. The procedure cannot be a mere formality, but must have a useful content: for the employee to be fully aware of the facts alleged against him and to be able to express himself in this respect, and for the employer to take these allegations of the employee into consideration in his final decision.