The Supreme Court prohibits disciplinary dismissal without a prior hearing procedure

In a recent ruling, the Social Division of the Supreme Court, meeting in plenary session and unanimously, has established that the employer must offer the worker the opportunity to defend himself against the allegations resulting in the termination of the employment contract due to a disciplinary dismissal.

Convention of the International Labour Organization

The Supreme Court ruling points out the need to apply, directly, article 7 of Convention No. 158 of the ILO (International Labour Organization) of 1982 (in force in Spain since 1986).

This article establishes: “The employment relationship of a worker shall not be terminated for reasons related to his conduct or performance before he has been offered the opportunity to defend himself against the charges made against him, unless the employer cannot reasonably be asked to grant him this opportunity.”

Modification of the Supreme Court's doctrine

The Court has just modified its own doctrine, established in the 1980s, which it justifies by the changes that have taken place in our legal system over the years.

Until now, the Supreme Court stated that Article 7 of the ILO was not directly applicable and that the prior hearing in disciplinary dismissals was already regulated in the Workers’ Statute. According to the Statute, the prior hearing was only required in certain cases, for example if it was established by the collective agreement, if the dismissal affected a representative of the workers or if the worker was affiliated to a union and the employer was aware of it.

From now on, a prior hearing will be generally required, as a consequence of the direct application of the aforementioned Article 7.

Effects of the ruling

The ruling itself indicates that the new doctrine is only required for new dismissals, that is, those that occur after the publication of this ruling. Thus, the previous jurisprudential criterion continues to be applicable to disciplinary dismissals that have already been executed.

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If you need legal advice regarding dismissals or labor matters, contact us by phone at 610632963 or by email at contact@nietojones.com. We will be happy to review your case.