Disciplinary dismissals can no longer be immediate in Spain

The Supreme Court has handed down a landmark ruling that modifies its own legal opinion on disciplinary dismissals. Employers are now required to offer employees a preliminary hearing before dismissal. Based on an updated interpretation of article 7 of ILO Convention 158, ratified by Spain in 1985, the Court confirms that employees must have the opportunity to defend themselves against the allegations made before the dismissal decision is made and notified. 

In the case analyzed, a teacher at an educational institution was dismissed for inappropriate conduct towards his female students. The employer did not offer the employee any preliminary hearing before terminating his employment, a circumstance overlooked by the Labor Court but considered by the Balearic Islands High Court of Justice, which declared the dismissal to be unfair due to this procedural error. The employer appealed the decision to the Supreme Court, arguing that Spanish regulations—according to well-established Supreme Court caselaw—do not require a preliminary hearing in all disciplinary dismissal cases. 

The Supreme Court, in its judgment of November 18, 2024, delivered by the plenary session of the Fourth Chamber, rectified its previous legal opinion, and established that article 7 of ILO Convention 158 is directly applicable in the Spanish legal system. This article stipulates that "an employment relationship will not be considered terminated for reasons related to the employee's conduct or performance before the employee is provided an opportunity to defend himself or herself against the allegations, unless the employer cannot reasonably be expected to provide this opportunity".

The Supreme Court's judgment highlights that this provision has been part of our internal legal system since its ratification and emphasizes that it is sufficiently clear and specific to be applied directly, without requiring additional regulatory development. The Court also clarifies that a preliminary hearing cannot be replaced by other post-termination mechanisms of defense, such as the pretrial conciliation hearing or challenging the termination measure in court. 

However, regarding the specific case brought to trial, the Court considers that the procedure was not breached. Given that earlier caselaw did not require the above preliminary hearing, the employer acted in line with that caselaw. This kind of nonretroactivity of the new criterion of the Supreme Court helps protect all dismissals prior to the judgment’s publication. 

This court ruling has a significant impact for companies in Spain, as it imposes a new obligation in the disciplinary dismissal procedure that could introduce a delay in the effectiveness of this procedure, whose ongoing progress must be managed. From now on, companies must ensure that employees are offered a preliminary hearing for the purpose of informing them of the charges and providing an opportunity to defend themselves before disciplinary dismissal. 

Failure to comply with this obligation could undermine the validity of a disciplinary dismissal, even if it is based on the employee’s verifiable labor infringement and give rise to legal and economic consequences. 

Therefore, it is critical for companies in Spain to review and, where appropriate, amend their internal dismissal procedures to comply with this new requirement and avoid potential litigation and frustration, particularly because each dismissal is different and requires a specific, detailed analysis to decide how to manage it.