disciplinary dismissal, as we know it — regulated under Articles 54 and 55 of the Workers' Statute — is currently subject to diverging interpretations across Spain's various High Courts of Justice, each applying a different approach.
Written by Cyrielle Agut
Employment lawyer
1. "Automatic" finding of unfair dismissal where the prior hearing requirement is not met
The High Court of Justice of the Balearic Islands has introduced a significant shift in the procedure employers must follow when notifying an employee of disciplinary dismissal (ruling 68/2023, of 13 February): is it mandatory to hold a prior hearing with the employee before proceeding with dismissal on disciplinary grounds?
Article 7 of ILO Convention No. 158 — the legal basis on which this High Court of Justice (TSJ) relies — establishes the principle that an employee, before the termination of their employment, must be given the opportunity to defend themselves against the allegations made. This implies that those allegations should be set out and communicated to the employee prior to termination, although the Convention does not specify the precise form in which they must be presented. Regardless, the High Court of Justice (TSJ) of the Balearic Islands reaffirms its established case-law position: where a prior hearing is not carried out before dismissal, the dismissal must be declared automatically unfair — even where there are otherwise valid grounds for dismissal.
This is not a position unique to the High Court of Justice (TSJ) of the Balearic Islands. The High Court of Justice (TSJ) of Extremadura, in a recent ruling (15 September 2023, appeal 326/2023), has reaffirmed that this prior hearing is a mandatory requirement before disciplinary dismissal can be notified.
2. THE INTERMEDIATE POSITION OF THE High Court of Justice (TSJ) OF MADRID
In its ruling 425/2023, dated 28 April, the High Court of Justice (TSJ) of Madrid introduced a nuance in the interpretation adopted by the High Court of Justice (TSJ)s of the Balearic Islands and Extremadura, indicating that, whilst it agrees that Article 7 of Convention 158 is directly applicable and that it must in all cases take precedence over Article 55 of the Workers' Statute, the consequence set out in that ruling differs. Failure to comply with the pre-dismissal hearing requirement is not a condition "whose breach under Spanish law triggers a declaration of unfair dismissal"; rather, it gives rise to a claim for damages under Article 1101 of the Civil Code.
3. THE NEW STANDARD ESTABLISHED BY THE High Court of Justice (TSJ) OF CATALONIA AND THE High Court of Justice (TSJ) OF VALENCIA
The ruling No. 7688/2023 of the High Court of Justice (TSJ) of Catalonia, dated 4 July, departs entirely from the conclusions reached by the High Court of Justice (TSJ)s of the Balearic Islands and Extremadura, holding that:
- Article 7 of Convention 158 does not have direct effect.
- Failure to comply with the pre-dismissal hearing requirement has no bearing whatsoever on the classification of the dismissal.
- It prefers to apply Article 1 of Convention 158, under which "the matters regulated therein must be implemented through national legislation. Article 7 is not directly applicable where subsequent domestic legislation has been enacted — and in this case, that legislation is found in Articles 55.1 and 55.2 of the Workers' Statute, together with the applicable case law, even though it extends only to certain categories of workers."
In other words, once the company has served the employee with the dismissal letter — setting out the alleged misconduct in sufficient detail for the employee to mount a full defence — without having first conducted a pre-dismissal hearing, the employer is deemed to have fulfilled all its formal obligations under both Spanish domestic law and international legislation.
Similarly, the High Court of Justice (TSJ) of Valencia, in its ruling of 12 December 2023, rejected the application of Article 7 of Convention 158, stating that:
- Whilst Article 7 does indeed require that the employee be informed of the charges prior to dismissal, it is not directly applicable where subsequent domestic legislation exists — as is the case with Articles 55.1 and 55.2 of the Workers' Statute in Spain.
- The Workers' Statute does not require a prior disciplinary hearing procedure in cases of disciplinary dismissal where the employee is not a workers' legal representative or trade union representative.
4. SO, WHICH APPROACH SHOULD BE FOLLOWED?
Until the Fourth Chamber of the Supreme Court issues a ruling on this matter, we cannot confirm which is the correct approach to take. We therefore await its authoritative interpretation. In the meantime, where the dismissal takes place in Catalonia, it would appear prudent to follow the line taken by the High Court of Justice of Catalonia — a line that also aligns with our own legal opinion:
1. ILO Convention C158 states in its Article 1 that it requires domestic legislative implementation and therefore the prior hearing requirement set out in Article 7 would not be directly applicable.
2. The ruling of the High Court of Justice (TSJ) of the Balearic Islands concerned a public sector employee, and the applicable regulations in that case did expressly provide for a prior hearing requirement — one which had not been observed.
