Disciplinary dismissal, (according to Articles 54 and 55 of the Spanish Labour Relations Act, hereinafter referred to by its initials in (ET), is applicable in the case of an employee’s serious and culpable breach of contract. For this purpose, the ET refers to some cases in which this kind of penalty can be imposed on a worker, being the collective bargaining agreements that can extend and detail more specifically the specific breaches of contact that can merit such reprisal.


In summary, Article 55 of the ET determines that, as requirements for disciplinary dismissal, the employer must notify the worker in writing about the specific reasons for his/her dismissal. This notice must be clear and detailed, stipulating the specific facts that implied the worker’s serious and culpable breach of contract.


Disciplinary dismissal, unlike objective dismissal, does not include immediate severance pay by the employer, due to being the maximum penalty that a worker can undergo if he/she commits a very serious breach of contract.


However… must the prior notice period be observed? In general terms, disciplinary dismissal does not require any prior notice. Nevertheless, the regulations do not determine an express prohibition in this respect; therefore, in principle, it should not be a reason to detract from the facts claimed in the notice.


But… bearing in mind that disciplinary dismissal is a sanctioning measure imposed on a worker due to very serious breach of contract, can the company revoke it once it has been imposed? 


This situation was analysed in the judgement of the High Court of Justice of Castile and Leon of 20 May 2024.


What happened in this specific case?
 

On 31 July 2023, the company sent written notice to the worker of her disciplinary dismissal due to her decreased performance, valid as of 24 August 2023. Because of this, the worker submitted the relevant settlement form on 17 August 2023.


However, on 22 August 2023, the company sent notice to the worker specifying that it had revoked the dismissal notified on 31 July 2023 and that the labour relationship would continue in force, requesting her to resume her job on 24 August 2023. This decision was notified by registered fax (burofax), (received on 31 August), and by WhatsApp on 22 August 2023.


After this, on 23 August 2023, the worker began a situation of temporary disability, one day before her reinstatement in the company.


What did the judgement of the High Court of Justice of Castile and Leon of 20 May 2024 rule? Is the right to revoke disciplinary dismissal in accordance with the law?
 

The worker sustained that her dismissal effectively took place on 31 July 2023; therefore the notices of revocation sent by the company took place after this date and were received on 31 August. She sustained that there was no "prior notice period" due to the difference in dates between the dismissal notice and its validity, considering that the dismissal had already taken place and the labour relationship had been terminated and she also specified she was on holiday until 24 August.


Such grounds were rejected by the Division of the High Court of Justice, based on the consolidated case law of the Supreme Court that determined while the dismissal had not become valid the labour relationship had not been terminated and the revocation could be valid if it took place prior to the valid date thereof; therefore, the labour relationship remained in force during the prior notice period.


Specifically, the judgement referred to the grounds of the judgement of the Supreme Court of 28 October 2014, Appeal number 2268/2013 that sustained the revocation of the dismissal during the prior notice period was valid, since it was a solution coherent with the principle of maintaining the job and the legal business.
 

Therefore, bearing in mind the facts in this case, the court ruled that the employer had revoked the dismissal and such revocation was valid, since it was expressly revoked prior to the valid date of the dismissal. It could hence not be considered that the labour relationship had been terminated because the company notified the revocation during the prior notice period, maintaining the worker registered in the social security system and without terminating her contract; it hence dismissed the appeal for reversal lodged by the worker.

 

Author: Roberto Villón, lawyer | Labour Law at RSM