On 18 November 2024, the Plenary Session of the Labour Chamber of the Spanish Supreme Court published one of those judgements that determines a new paradigm in labour relations, more specifically related to the employer’s sanctioning authority and its formalities.

 

Regarding the Judgement of the Spanish Supreme Court number 1250/2024 of 18 november  2024, appeal number 4735/2023

 

In this respect, as is already known by the whole community of labour lawyers, the High Court unanimously agreed that companies cannot dismiss workers for disciplinary reasons without holding a previous hearing, (statement of defence or list of charges), in other words without offering the workers the possibility to defend themselves from the charges or accusations on which the dismissal is based.

 

This new judgement ends a debate and an uncertainty that has lasted months, after the High Court of Justice of the Balearic Islands opened pandora’s box on this matter with its judgement of 13 February 2023, providing a possibility of the existence of a contradictory ruling in an appeal to the Supreme Court (Cassation).

 

In this respect, the Supreme Court drew the following conclusions regarding the need for the now famous “statement of defence”, as shown below:

 

  • as pointed out by the Senior Judges in the aforementioned judgement, Before the dismissal can take place the workers must be able to defend themselves from the irregularities/breaches of contract they are accused of, as stipulated in the Convention of the International Labour Organisation (“ILO”) in force since 1982. This decision is based on the need to directly apply Article 7 of Convention 158 of this organisation.

 

  • In this way, the Court has now changed its own doctrine, determined in the 1980s, justifying this change of criteria based on "the changes taking place in the Spanish legal system during this whole time",  such as the International Treaties Act, Constitutional Doctrine, etc.

 

  • The ILO Convention therefore requires this prior hearing before the dismissal, "unless the employer cannot be reasonably requested to hold it”,  as happened in the case analysed, in which the company was protected by case law criteria that, having remained in force over time and related to the same provision, released it from fulfilment of such requirement on the date it failed to do so.

 

  • For the previous reasons, this doctrine can only be claimed for new dismissals, in other words, the judgement is not retroactively applicable, such formal requirement only being possible for new cases arising since the publication of the judgement, i.e. from 18 November 2024 and thereafter.

 

In a supplementary manner to the foregoing, such ruling is still positive, since it ends a period of legal uncertainty on how to correctly act when faced with this issue, even though the greatest guarantee, in the event of doubt, was to hold this hearing, something that has now become a formal issue of mandatory fulfilment, with the result, a priori, of the dismissal being categorised as unfair if this procedure is omitted.

 

This judgement “implies a powerful blow” to the formalities of the applicable disciplinary system; even though it is certain and true that many applicable collective bargaining agreements already included this requirement, the problem lay in those that did not include it and, in this way, the workers were left “with no protection” in the case of disciplinary dismissals, above all the immediate or sudden ones.

 

However, in spite of the judgement ruled by Labour Chamber Four, there are still some loose ends that need to be tied up about how to act from now on:

 

  • Does failing to hold this formal procedure imply that the dismissal is unfair or, for further clarification, could it lead to it being ruled null and void due to not observing the worker’s right to defence?

 

  • Could additional compensation even be payable due to not holding the hearing procedure?

 

  • What does this statement of defence actually consist of? What is the reasonable term that must be granted for the worker to reply?

 

  • Could this become an instrumental mechanism for the worker, who knows about his/her potential dismissal, to decide to “protect him/herself” using some of the mechanisms provided by law?


As you can see, the powerful blow by the Supreme Court also implies a series of doubts that are far from trivial; therefore the Labour Department of RSM remains at your entire disposal to clear up such doubts so that the dismissal you are planning to carry out in your company takes place with all the guarantees possible. 

 

Autor:  Alejandro Alonso, abogado de Derecho Laboral en RSM