Preliminary hearing in disciplinary dismissals and its legal implications

Legal changes that companies and workers should be aware of

On November 18, 2024, several articles and comments were published regarding the recent ruling by the Supreme Court (STS 18/11/2024, 1250/2024), which unifies case law, establishing the obligation for all companies to carry out a pre-dismissal hearing before a disciplinary dismissal, unless it cannot reasonably be requested from the employer. However, a fundamental question remains: what exactly is a pre-dismissal hearing and how does it influence the disciplinary dismissal process? Below, we explore this important regulatory change and its implications for workers and companies.

What is a pre-dismissal hearing?

In simple terms, a pre-dismissal hearing is a right that guarantees the worker the opportunity to be heard before a disciplinary dismissal decision is made. According to the Supreme Court ruling, before an employer can proceed with the dismissal of a worker for disciplinary reasons, the employer must provide an opportunity for the worker to present their defense. This mechanism aims to ensure fairness in the process and prevent unilateral decisions that may be unjust.

This principle of "pre-dismissal hearing" is based on a fundamental right that ensures workers are not dismissed without first knowing the reasons behind the decision and without being able to defend themselves adequately. As stated in the ruling, the purpose is clear: that "the worker be heard by the employer about the facts before the employer can make final decisions about it, which, with that knowledge, perhaps the employer wouldn't have made."

How to conduct a pre-dismissal hearing?

As emphasized by the ruling, the purpose of the pre-dismissal hearing is to guarantee a principle of fairness in the process. In this sense, Article 7 of the ILO Convention and Spanish legislation do not require a rigid format for the pre-dismissal hearing, but focus on the principle that the worker has the opportunity to be heard. The goal is to prevent a disciplinary dismissal from being carried out without the worker having had the chance to present their version of the facts or provide evidence that may influence the final decision.

This right to hearing must be a formal and transparent process, ensuring that the worker has an adequate period to present their allegations and evidence. Regarding what is considered “adequate,” we must remain attentive to future rulings and clarifications that the courts may determine according to the case law.

Since when are companies required to carry out the pre-dismissal hearing?

Until now, various rulings supported the obligation, based on both the Statute and Article 7 of the ILO, while others validated the disciplinary procedure, based on its absence in the applicable collective agreement. For this reason, at Baker Tilly, we have always recommended that, in cases of dismissals with indications of validity, companies act prudently, carrying out different actions before the dismissal, such as meetings, improvement plans, and prior warnings, and only if these do not have an effect, should the dismissal be carried out.

However, the unification of case law issued by the Supreme Court leaves no room for doubt, and the ruling establishes that the pre-dismissal hearing procedure is mandatory for all future disciplinary dismissals.

What happens if I don't comply with this obligation?

We cannot fail to mention Article 55.2 of the Workers' Statute, which states that, if a dismissal does not meet the established requirements, such as the pre-dismissal hearing, the employer may carry out a new dismissal, following the appropriate steps, within 20 days of the initial dismissal. In this case, the company must provide the worker with the corresponding wages for the intervening days and keep them enrolled in the Social Security during this time.

As mentioned earlier, this obligation only applies to future dismissals, not to those already carried out before the ruling. Therefore, no sanctions are expected for disciplinary dismissals prior to the ruling date.

Can damages be claimed for the lack of a pre-dismissal hearing?

An unfair dismissal, in general terms, results in a fixed indemnity, determined by objective criteria such as the salary and years of service of the worker. This indemnity covers the damages resulting from the termination of the contract. However, if the dismissal is based on discriminatory reasons or violates fundamental rights, it could lead to an additional indemnity for damages.

Regarding the lack of a pre-dismissal hearing in a dismissal, it is still early to determine whether a damages claim could be made. If this omission is interpreted as discrimination or a violation of fundamental rights, it could lead to a claim for additional damages. However, if it is not considered a violation, the standard indemnity, calculated based on the worker's salary and years of service, would apply.

However, a relevant case that sets a precedent occurred on January 30, 2023, when the Superior Court of Justice of Catalonia granted for the first time an additional indemnity to the legally established one for an unfair dismissal, even though there was no discrimination or violation of fundamental rights. In this case, the court considered the initial indemnity insufficient to dissuade the employer, and that the dismissal prevented the worker from accessing an ERTE, which stopped them from benefiting from extraordinary unemployment measures. In this context, the court recognized an additional indemnity for the unemployment that was not received, considering the employer's actions to be an abuse of law.

The court based its decision on ILO Convention 158 and the European Social Charter, as well as previous rulings that had indicated the possibility of granting additional indemnities in exceptional cases. However, it must be noted that this ruling does not imply the general application of additional indemnities, as it is not expressly contemplated in Spanish labor law nor supported by the Supreme Court. For this additional indemnity to be recognized, three key requirements must be met:

1. An insufficient base indemnity.
2. A clear illegality or abuse of law in the dismissal.
3. Justification of the damages caused.

What implications does it have for companies?

For companies, this ruling implies the need to adapt their internal procedures to ensure they comply with the pre-dismissal hearing procedure. This involves not only a change in how disciplinary dismissals are managed but also a shift in mentality when addressing internal issues, prioritizing the creation of resources and tools to improve relationships and productivity, while monitoring the legal deadlines for this. Human resources departments will need to be more attentive when implementing these procedures, which could mean adjustments to the labor practices of many organizations.

What benefits does it have for workers?

On the other hand, workers benefit significantly from this new procedure, as it provides them with greater protection against unjustified or arbitrary dismissals. The opportunity to be heard before a final decision is made about their dismissal allows employees to present their version of the facts and submit any evidence that may influence the employer's decision, as well as make improvements or corrections that could ensure the viability of their position. This process ensures a higher degree of fairness, as it prevents unilateral dismissal decisions without due care for procedures and fairness.