The Preliminary Hearing in Disciplinary Dismissal: Protection Against Risk

The regulation of disciplinary dismissal in Spain has undergone a historic transformation following recent case law issued by the Labour Chamber of the Supreme Court. What for decades was considered an employer’s prerogative subject solely to the procedural and substantive requirements set out in the Workers’ Statute now requires an additional guarantee of an international nature: the worker’s right to be heard prior to the termination of their contract.

This paradigm shift, consolidated by the Supreme Court judgment of 18 November 2024 (appeal no. 4735/2023) and ratified in subsequent rulings such as Supreme Court Judgment 185/2025 of 11 March, obliges companies to redesign their procedures to prevent dismissals justified on serious grounds from ultimately being declared unfair due to procedural defects.

The crux of the debate lies in determining whether, pursuant to Article 7 of ILO Convention No. 158, the employer is obliged to offer the worker the opportunity to defend themselves against the charges brought against them before terminating the employment relationship on disciplinary grounds, despite the fact that the Workers’ Statute does not generally provide for such a requirement for workers who are not representatives.

The Supreme Court bases its decision on an analysis of the interaction between international law and domestic law. The Chamber reiterates the established doctrine by holding that Article 7 of the aforementioned Convention is a ‘self-executing’ provision (directly applicable). This implies that:

• It does not require national legislative implementation to be effective.
• Having been ratified by Spain, it forms part of the domestic legal order in accordance with Article 96 of the Spanish Constitution.
• Ordinary courts must carry out a conformity check, giving priority to the international treaty over domestic law (Article 55 of the Workers’ Statute) if the latter offers less protection.

The Court clarifies that the prior hearing is not a mere formality, but an ‘essential right to be heard or to defend oneself’ and an ‘equitable measure’. Its purpose is to allow the worker to be heard by the person with disciplinary authority before a final decision is taken, which could lead the employer to refrain from dismissing the worker after hearing the worker’s version of events.

Despite acknowledging that the correct legal principle is that which requires a prior hearing, the Supreme Court dismisses the worker’s appeal on the basis of an exception contained in Article 7 of the Agreement itself: ‘unless the employer cannot reasonably be expected to grant this opportunity’.

This provides greater legal certainty, as since the 1980s, the settled case law of the Supreme Court had held that a prior hearing was not necessary (except for representatives).

1. The Regulatory Framework: The Triumph of ILO Convention 158

Traditionally, Article 55.1 of the Consolidated Text of the Workers’ Statute (ET) limited the requirement for a hearing or prior consultation to very specific cases: legal representatives of workers or trade union delegates. For the rest of the workforce, the delivery of a detailed letter of dismissal was sufficient.

However, the Supreme Court has revised its long-standing doctrine to bring it into line with Article 7 of ILO Convention 158, ratified by Spain in 1985. This provision expressly states:

‘The employment relationship of a worker shall not be terminated on grounds of conduct or performance before the worker has been given the opportunity to defend himself against the charges brought against him.’

The Spanish courts recognise the direct applicability of this international standard, elevating the preliminary hearing to the status of a general formal requirement for any dismissal based on an employee’s conduct or performance.

2.  How should the preliminary hearing be conducted? Criteria for Application

Given the absence of detailed regulation in domestic legislation regarding time limits and the exact procedure, legal doctrine and lower court case law have gradually defined the minimum requirements for the procedure to be considered validly completed:

• Notification of charges: The employer must notify the employee, clearly and in detail, of the facts alleged against them which could lead to dismissal. A generic reference is not sufficient; the employee must know what they are being accused of in order to defend themselves.
• Reasonable time limit for submissions: Although there is no fixed legal time limit, it is considered advisable to allow between 2 and 5 working days. A period of less than 24 hours has been deemed insufficient by the Supreme Court by analogy with other procedures.
• Form of the procedure: Although the law does not require this to be in writing, sound business practice dictates that both the notification of the start of the procedure and the employee’s representations should be reliably documented for evidential purposes.
• Assessment of the representations: The company has a genuine obligation to analyse the employee’s submissions before making a final decision. The preliminary hearing must not be a mere ‘cosmetic formality’ where the decision has already been taken in advance.

3. Essential Business Precautions

To minimise the risks of a ruling of unfair dismissal, companies must adopt a series of strategic precautions:

1. Precautionary suspension or paid leave: In cases of serious misconduct where the employee’s continued presence in the role may jeopardise the investigation or safety (for example, cases of harassment or theft of property), the company may choose to grant paid leave for the duration of the hearing process. This guarantees the right to a defence without compromising business operations.
2. Avoiding simultaneous action: It is a critical mistake to hand over the dismissal letter and offer the hearing at the same time. Case law warns that, in such a scenario, the employee is not in an optimal position to gather evidence or mount a proper defence.
3. Handling of temporary incapacity and holidays: If the employee is on temporary incapacity or holiday leave, the company must attempt to communicate with them (via registered fax or reliable electronic means). Only if the health situation objectively prevents the employee from mounting a defence (e.g. serious hospitalisation) could the ‘reasonableness’ exception provided for in Convention 158 apply.
4. Monitoring the limitation period: One of the main concerns is that the preliminary hearing procedure may cause the limitation periods for disciplinary offences to lapse (60 days from the date of discovery). It is vital to initiate the procedure with sufficient time to ensure that the final notice of dismissal is issued within the time limit.

4. Consequences of Non-Compliance: Unfair Dismissal

Although some courts have proposed ‘imaginative’ solutions such as additional compensation for damages, the Supreme Court’s ruling in Judgment 185/2025 is clear: the failure to hold a prior hearing constitutes a procedural defect that renders the dismissal unfair under Article 55.4 of the Workers’ Statute.

This means that the company will be obliged to choose between reinstating the employee (with payment of back pay) or paying the statutory compensation of 33 days’ pay per year of service, thereby forfeiting the opportunity to defend the validity of the dismissal, however serious the misconduct may have been.

5. Exceptions to the Duty to Hold a Hearing: The Standard of Reasonableness

ILO Convention 158 allows the hearing to be omitted when ‘the employer cannot reasonably be expected to provide this opportunity’. However, this exception must be interpreted restrictively. Some cases that might fall under this are:

• Inability to locate the worker after credible attempts.
• The employee’s express and documented refusal to participate in the proceedings.
• Situations of extreme urgency where immediate action poses an imminent risk to personal safety.

6. Assessment of the Preliminary Hearing: Benefits for the Employee and Strategic Risks for the Company

The establishment of the preliminary hearing as a mandatory requirement in disciplinary dismissal, following the Supreme Court’s shift in case law in its judgment, substantially alters the balance of power in the termination phase. This new scenario generates a range of safeguards for the employee, but correspondingly imposes a series of critical risks for the employer that hinder the exercise of disciplinary power.

A. Benefits for the Employee: Strengthening the Right of Defence

The prior hearing is not a mere formality, but an ‘essential right of defence’ which affords the employee the following advantages:

1. Preventive Protection and Avoiding Dismissal: The main benefit is the opportunity to refute the charges before the decision becomes final. Under Article 7 of ILO Convention No. 158, the employee may present a version of events of which the employer was unaware, which may result in the dismissal being replaced by a lesser penalty or even the case being closed.
2. Early Access to the Statement of Allegations: This allows the employee to know precisely what they are accused of before receiving the final dismissal letter. This prevents them from being left defenceless and enables them to formulate a much stronger defence strategy from the outset, by identifying witnesses or gathering documentary evidence that might otherwise disappear after they leave the company.
3. Guarantee of Unfair Dismissal Due to Procedural Defect: Should the company fail to follow this procedure, the employee is automatically granted a ‘pass’ to a declaration of unfair dismissal. In accordance with Article 55.4 of the Workers’ Statute and the legal principle established in Supreme Court Judgment 185/2025 of 11 March, the failure to hold a prior hearing renders the dismissal unfair, with the consequent right to compensation of 33 days’ pay per year or reinstatement with back pay.

B. Risks for the Company: The Complexity of Disciplinary Power

For the company, the prior hearing entails a significant increase in legal uncertainty and operational costs:

1. Risk of ‘Contamination’ of the Procedure: Any error in setting the time limit (which case law places between 2 and 5 working days) or in specifying the charges in the initial statement of grounds may invalidate the subsequent dismissal. The company faces the risk that a dismissal for just cause (for example, theft or assault) may be declared unfair solely because the timing of the hearing was not managed correctly.
2. Difficulty in Managing Limitation Periods: Article 60.2 of the Workers’ Statute establishes short limitation periods for very serious offences (60 days from the date of discovery). The obligation to organise a prior hearing procedure takes up valuable time which, if not managed diligently, may result in the offence becoming time-barred before the final letter of dismissal can be served.
3. Additional Financial Burden: If the dismissal is declared unfair due to the lack of a prior hearing and the company opts for reinstatement, it must pay the wages for the period of proceedings in accordance with Article 56.2 of the Workers’ Statute. This entails a financial cost that would not have arisen had the dismissal been declared fair from the outset.
4. Loss of the Element of Surprise and Risk of Sabotage: By communicating the charges prior to termination, the company allows the employee to influence other colleagues or, in cases of bad faith, to conceal evidence or relevant information before their effective dismissal. To mitigate this, the company is forced to resort to paid precautionary suspension, which increases the cost of the exit process.

In conclusion, the preliminary hearing transforms disciplinary dismissal into a quasi-administrative procedure where form takes precedence over substance in the initial phase. The company must not only have just cause, but must also be able to ‘litigate’ it internally before going to court, at the risk of losing the case due to a mere procedural error.

7. Final Reflection: The Need for Specialised Advice

The current landscape of employment law in Spain no longer allows for improvisation. The introduction of the preliminary hearing is not a mere administrative formality, but a substantive safeguard that directly affects companies’ bottom line and their legal certainty.

An error in calculating the days allowed for submissions, ambiguous wording in the notice of charges, or a failure to respond to evidence provided by the employee can invalidate a legitimate dismissal decision. It is therefore imperative that companies seek advice from lawyers specialising in employment law. Only an expert professional can design robust internal protocols, assess the reasonableness of exceptions in complex cases, and ensure that the company’s disciplinary powers are exercised in full compliance with legal safeguards, transforming a procedural risk into an opportunity to improve talent management and organisational transparency.

 

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More information:

Lupicinio International Law Firm
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28001 Madrid
P: +34 91 436 00 90