Obligation of prior hearing in disciplinary dismissals: a decisive turn by the Supreme Court
November 26, 2024 · Vilar Riba
The Supreme Court has established a new doctrine that requires a prior hearing for the employee in the case of disciplinary dismissals, as determined by ruling 1250/2024, dated November 18. This change, based on the direct application of ILO Convention 158, significantly affects the dismissal process. Below, we analyze the background, the Court's arguments, and the practical implications of this ruling.
Background of the case
The Supreme Court’s ruling is based on the case of a teacher at a Dramatic Art School in Mallorca who was fired for alleged sexual harassment and gender discrimination.
- Initial procedure:
- The Social Court 4 of Palma declared the dismissal appropriate, considering the facts proven.
- Supplication resource:
- The Superior Court of Justice of the Balearic Islands annulled the initial decision due to lack of a prior hearing with the worker, declaring the dismissal improper.
- Appeal of cassation:
- The Supreme Court confirmed the TSJ’s criterion, consolidating the obligation of a prior hearing as a requirement in disciplinary dismissals.
Supreme Court arguments
The Supreme Court relies on article 7 of ILO Convention 158, ratified by Spain in 1985, to establish that this standard has direct application in the national legal system.
Drafted from Article 7 of Convention 158
“The employment relationship of an employee shall not be terminated for reasons related to his conduct or performance before he has been offered the opportunity to defend himself against the charges made against him, unless the employer cannot reasonably be required to grant him this opportunity.”
Reasons for direct application
The Court argues that this article is a “self-sufficient” international norm, since:
- It has complete and clear content.
- It does not require specific transposition into national legislation.
The Court concludes that the prior hearing is a right of the worker and a requirement that the employer must comply with before the dismissal becomes effective.
Practical implications and conclusions
With ruling 1250/2024, of November 18, the Supreme Court consolidates the obligation of a prior hearing in disciplinary dismissals. This procedure guarantees the worker a period to present allegations before the dismissal takes effect.
In practice, it will be advisable to grant the worker paid leave during this period to avoid tensions. Failure to comply with this requirement will, in all likelihood, result in the dismissal being declared unfair, with the economic and employment consequences that this implies.
Although Article 7 of ILO Convention 158 provides for exceptions when it is unreasonable to require a hearing, these have not been detailed by the Supreme Court. Therefore, the general recommendation is to always comply with this procedure to guarantee the defense of the validity of the disciplinary dismissal.
This resolution reinforces workers’ rights and forces companies to adapt their dismissal processes to this new regulatory reality.
