Disciplinary dismissal in Spain now requires a prior hearing of the employee. This has been established by the Supreme Court in its ruling of November 18 th, 2024, directly applying Article 7 of ILO (International Labor Organization) Convention No. 158, which recognizes the worker’s right to defend themselves before the dismissal is decided for causes related to conduct or performance.
Doctrine of the Supreme Court: relevant change
The Plenary of the Social Chamber has declared that this international Convention has direct application in the Spanish legal system, without the need for additional regulatory development, in accordance with Article 96.1 of the Constitution. This means that companies are obliged to allow the employee to present his or her version of the situation before dismissing him or her for disciplinary reasons.
Justified exceptions
The prior hearing will not be required in exceptional situations, such as:
- Risk of destruction of evidence
- Material impossibility of holding the hearing
- Assumptions in which it is unreasonable to ask the employer to allow it.
These exceptions must be justified and documented.
Consequences of non-compliance
Failure to hold the hearing may lead to:
- Qualification of the dismissal as unfair
- Possible administrative sanctions
- Compensation if the employee proves to be defenseless.
The STSJ (Supreme Court of Justice) of the Balearic Islands, in its judgment of February 12 th, 2025 (no. 2025/525628), has already applied this doctrine as consolidated.
How to comply with this obligation?
Although no specific form is required, a brief summons is considered valid -even on the same day of dismissal- as long as the employee can know the facts and defend himself/herself minimally. It is advisable to leave a written record of the procedure.
Conclusion
All disciplinary dismissals must include a prior hearing, except in exceptional cases. This requirement reinforces the rights of the worker and aligns the procedure with the international standards of the ILO. Companies should review their protocols to avoid legal risks.
Sara Flores
