Disciplinary dismissals are becoming more complicated.
Prior hearing before disciplinary dismissal: a new mandatory requirement
In ruling No. 1250/2024, the Supreme Court has established important new doctrine: employers must give the employee a prior hearing before proceeding with dismissal (Download ruling TS - Prior Hearing before dismissal)
From now on, disciplinary dismissals that fail to provide the employee with a prior hearing — an opportunity to make representations and submit evidence — will be classified directly as unfair. This is in accordance with Article 7 of International Labour Organization (ILO) Convention No. 158 of 1982, which has been in force in Spain since 1986.
employee representations in disciplinary proceedings
The employee may or may not choose to make representations at the prior hearing when disciplinary proceedings are opened against them. Care must be taken regarding what is said at this stage — whether orally or in writing — as it may subsequently be used as evidence against them.
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Background to the case:
The employee worked as a lecturer in Theatre Theory at a performing arts school, and also served as secretary to the management team of the Fundació Superior d'Art Dramàtic of the Balearic Islands.
On 30 March 2021, the Foundation's Board of Trustees decided to dismiss the employee on disciplinary grounds following complaints from students about his inappropriate conduct, sexually charged comments and contact outside the academic setting. The employee challenged the dismissal, but the ruling of the employment tribunal upheld the disciplinary dismissal, finding that the acts of sexual harassment reported by several female students had been proved. The allegations included conduct such as "intimidating stares"; "encroaching on personal space"; using students' personal mobile phones to invite them for coffee outside the school and outside class hours, or inviting them to dinner; sending friend requests on their Instagram profiles; comments such as "what a short skirt", "you look very pretty today", "you have a very sensual look" or "your body is very sexy — you should make the most of it"; staring persistently at a student's chest; "inappropriate remarks and sexualised behaviour"; comments about students' physical appearance; and flattering students with remarks that were clearly sexual in intent (lascivious looks, suggestive comments, etc.). These acts were corroborated by numerous witness testimonies, as well as by reports from the education inspectorate and the Balearic Women's Institute, both of which classified the conduct as harassment.
The teacher lodged an appeal before the Social Chamber of the High Court of Justice of the Balearic Islands, which ruled in February 2023 that the dismissal was unfair. The court considered the dismissal letter to be formally correct and found that no contradictory disciplinary proceedings were required; however, it did find a breach of the "prior hearing" requirement under Article 7 of ILO Convention No. 158, which states that:
"the employment of a employee shall not be terminated for reasons related to the employee's conduct or performance before the employee is provided an opportunity to defend themselves against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity."
The Supreme Court partially upholds the appeal brought by the Foundation on the following grounds:
- it confirms that the prior hearing was required.
- it finds that, given the shift in case law, it was not reasonable to expect the Foundation to have conducted such a prior hearing at the time.
- it notes that the appellate court had identified defects in the first-instance ruling and declared it void — and since that finding has become final, the case is remitted to the first-instance court for a fresh ruling to be issued.
What is the "prior hearing" before dismissal:
The ruling sets out the following verbatim:
"That the employee be heard on the relevant facts by the employer before the latter takes any definitive decisions — decisions which, with that knowledge in hand, the employer might not otherwise have made."
We must look at how case law shapes this right for the employee — that is, how and in what form compliance with the prior hearing requirement is assessed. in accordance with what we discuss below, it will be necessary to consider whether a "prior hearing" can consist of something as informal as an audio recording in which the employer challenges the employee over certain facts and the employee responds verbally.
That said, we are confident that the Spanish legislature will not delay in transposing the ILO rules into domestic law and will introduce legislation setting out the formal requirements and timing of the prior hearing — the consequences of this requirement are too significant for it to remain unregulated. Indeed, in comparative legal systems such as France, this prior hearing is extensively regulated and allows the employee to make representations before being dismissed.
Pre-dismissal hearing in France: Within the framework of the disciplinary dismissal procedure under French law, it is worth noting that French legislation already makes the pre-dismissal hearing mandatory in some form. Specifically, when the employer becomes aware of conduct by an employee that could be classified as a serious disciplinary offence, the employer must notify the employee in writing, with a minimum notice of 5 working days. On the day of the meeting, the company must set out to the employee and their legal representative the reasons for the meeting and how those reasons could constitute a serious disciplinary offence, potentially leading to dismissal. During the meeting, the employee may make any verbal representations they consider appropriate. Once the pre-dismissal hearing has concluded, and after a minimum of 2 working days have elapsed, if the employer considers that the offences were in fact committed and cannot be overlooked, the employer may notify the employee of their decision to terminate the employment contract on disciplinary grounds (more information here).
For the time being, as we have noted, what matters most is that the employer can demonstrate that this pre-dismissal hearing took place — whether by means of a recording in which the employee is invited to give their account, or through the presence of two witnesses who can attest that the employee was given that opportunity to explain themselves (and ideally those witnesses should be employee representatives). Some may wish to make this process more elaborate — along the lines of a formal disciplinary procedure — but for now neither the legislature nor the Supreme Court requires any additional formalities.
The Supreme Court states that "Article 7 of the Convention says nothing more, nor does it require anything specific regarding the form in which that dialogue or hearing with the employee is to be conducted (…) it does not prevent the minimum and sufficient requirement from being simply that the employee is given the opportunity to be heard, which requires no greater precision."
How is the pre-dismissal hearing conducted?
The Supreme Court holds that "this prior hearing is grounded in a principle of fairness, allowing the employee to put forward any relevant arguments in relation to the conduct alleged to warrant disciplinary action, and to do so before the person holding disciplinary authority and before that person takes any action"
Certain rulings — including the High Court of Justice (TSJ) of Galicia judgment of 4 April 2024 (case 503/2024) and the High Court of Justice (TSJ) of Madrid judgment of 28 April 2023 (case 1436/2022) — establish that:
- the employee must have the opportunity to respond to the allegations made against them;
- the employee must be informed of the charges that the company intends to include in the dismissal letter;
- the employee must be given the opportunity to submit representations and evidence to the decision-making body within the company;
- this must be communicated sufficiently in advance of the decision being taken, to allow those representations and evidence to be submitted.
- The prior hearing is not equivalent to a formal "adversarial disciplinary procedure" (such as that which must be followed when dismissing an employee representative). Courts will not require the prior hearing to be conducted in writing or to follow any particular formalities — it may be held orally, for example through a conversation with the Head of HR or in a meeting with the company in the presence of employee representatives.
Our recommendation here is that the company take steps to ensure that the prior hearing can be evidenced if required. In practice, this is generally easier to demonstrate through written records. In other words, the employee should first be informed of the facts and given sufficient time — the law and case law do not specify how much — to respond, before the final decision is communicated. This will require careful planning on the part of the company. That said, simply demonstrating that the employee was asked to provide an explanation will generally be sufficient to show that the prior hearing requirement has been met.
When is a prior hearing not required?
A prior hearing is required "unless it cannot reasonably be requested from the employer". We will need to wait for case law to clarify more precisely when these circumstances arise. Specifically, the Supreme Court has stated:
Each case must be assessed individually as to whether it is reasonable to consider "the employer's refusal to grant a hearing — which, as an exception, will be determined by the specific circumstances surrounding each case and which may justify that the employer could not or was not required to grant that opportunity — which is not the same as evading it"
unfair dismissal:
Is dismissal without a prior hearing null and void or merely unfair?
As a general rule, failure to conduct a prior hearing will result in unfair dismissal where the formal obligation to give the employee a prior hearing has not been met. This is because the law does not expressly provide for nullity in such cases, nor does the omission infringe a fundamental right or constitute discrimination.
It is clear that where the dismissal concerns an employee representative, for example, that dismissal will be declared null and void — particularly where no adversarial disciplinary procedure has been opened.
Can damages be claimed where a prior hearing is omitted in a dismissal?
It is likely that damages will be sought for failure to observe the prior hearing requirement in the context of a dismissal, in accordance with Article 1101 of the Spanish Civil Code. However, damages must be proved — not merely claimed — and this may prove considerably more difficult in practice.
Future case law will determine, nonetheless, whether such damages may translate into additional compensation on top of that awarded for unfair dismissal, or even into payment of lost wages from the date of dismissal until the date of the court hearing (TSJ Navarra, 6 March 2024 (case no. 81/2024) and TSJ Navarra, 19 March 2024 (case no. 2/2024).
Employment lawyers for disciplinary dismissal proceedings:
What the parties say during the prior hearing can work against them, and without evidence of its having taken place — or if the chronology is inaccurate — matters are very likely to become considerably more complicated.
Given the increasing number of formalities and requirements to bear in mind in a disciplinary dismissal, we find it ever more essential that an employment lawyer oversees the process and timeline in every dismissal. Wherever possible, we also recommend that the employment lawyer be present at the prior hearing, in order to ensure that both the procedure and the substance are handled correctly at that stage.
Contact us if you need advice on disciplinary dismissals:
