The Supreme Court ruling of 18-11-2024, handed down by Plenary has established that a worker’s employment relationship should not be terminated for reasons related to his conduct or performance before the worker has been given the opportunity to defend himself against the charges brought against him.

i. New Judicial Doctrine of the Supreme Court.

This Supreme Court Judgment considers Article 7 of ILO Convention 158 to be directly applicable, as an international treaty signed by Spain and with effects within domestic legislation (especially after Law 25/2017 on International Treaties and Agreements) and changes the doctrine maintained by the Supreme Court itself since 1988, on the issue of the ‘prior hearing’ of the employee in cases of ‘disciplinary dismissal’ (not to be confused with other causes of termination such as objective dismissal, as this doctrine only applies to disciplinary dismissals).

Article 7 of the ILO Convention states.

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

For its part, Article 55.1 of the Workers’ Statute establishes as to the possible need for a hearing or the opening of disciplinary proceedings.

1. “Opening of contradictory proceedings” when the worker is a legal representative of the workers or a union delegate.

2. If the worker is a member of a trade union and the employer is aware of this, it must give a prior hearing to the union delegates of the trade union section corresponding to said trade union.

3. Other formal requirements for dismissal may be established by the applicable collective bargaining agreement

ii. From when this new Judicial Doctrine is applicable.

The ruling establishes that this new criterion will only apply from the date of publication of the ruling. Consequently, after the publication of this Supreme Court Ruling, a “prior hearing” must be given to all employees in cases of disciplinary dismissal, even if the Collective Bargaining Agreement does not establish the need for a hearing or the opening of a proceeding.

iii. Exceptions to the prior hearing

As we have seen, the aforementioned Article 7 establishes an exception to this requirement, where the employer cannot reasonably be requested to grant this possibility. The Supreme Court does not explain much more about when this exception may occur, except for the exception provided for in the Ruling itself with respect to dismissals carried out without a prior hearing prior to the dismissal, where it understands that “reasonably” the employer did not carry out the prior hearing in application of the constant previous case law of the Supreme Court on this issue.

iv. The great unknown that the Supreme Court does not answer: What are the implications of not giving such prior hearing in dismissals?

The High Court does not say what happens when a dismissal is carried out without respecting this prior hearing. Some Courts have chosen to consider that the absence of a prior hearing gives rise to the right of the worker who “is entitled to be compensated for the damages caused by the breach. Specifically, it follows that if the dismissal is subsequently declared unfair in a court decision” (STSJ Madrid -Social-, sec. 2ª, S 28-04-2023).

Other courts have opted to consider that the absence of a hearing implies the unfairness of the dismissal, as in the case of the ruling of the TSJ Illes Balears (Social), section 1ª, S 13-02-2023, whose appeal has given rise, precisely, to the ruling of the Supreme Court that is now being commented on.

It seems clear to think that the Supreme Court will set a new criterion in this regard in the near future, but until then, from Belzuz Abogados, and the team of expert lawyers in labor law that compose it, we can conclude two direct consequences.

a) That in such cases, the company will be exposed to two previous claims by the worker who sues against the dismissal (unfairness and request for compensation).

b) That the greatest risk for the company is usually that the judgment will rule the dismissal automatically unfair due to formal defects in the dismissal. Well, taking into account that Article 55 of the Workers’ Statute regulates the unfairness of the dismissal when such formal requirements are not complied with, added to the fact that the prior hearing is a formal requirement of the dismissal, we must think that the automatic unfairness of the dismissal for this reason is a very feasible option to be adopted by the Courts hearing those dismissals lacking prior hearing.

From , as expert labor lawyers and with extensive procedural experience in judicial dismissal proceedings, we recommend companies to obtain due legal advice before undertaking a disciplinary dismissal, or to carry out the prior hearing described or in the last case to allege in the letter of dismissal a reasonable cause of exception that may be admissible in a Social Court. In order to carry out these actions, it is recommended to have precise specialized advice on the matter, such as the one we provide from the of