End of immediate disciplinary dismissal. This Monday, the Supreme Court revolutionized the world of work with a very relevant ruling. It recognizes a new right for Spanish workers to a “prior hearing” in the event of disciplinary dismissal, so companies must give them the opportunity to defend themselves against the accusations made against them before terminating their contract. How this new law has been applied, since when, and certain doubts and possible interpretations will give rise to “a lot of litigation” before the courts, several labor law specialists anticipate.
“The impact of the new ruling of the Supreme Court on labor management in companies is enormous,” estimates Ana Belén Muñoz, professor of labor law at the Carlos III University of Madrid, who recalls that dismissal “is the one of the institutions that give rise to greater contention in social jurisdiction.
Correcting its previous doctrine since the 1980s, the Supreme Court integrates into labor law in Spain this guarantee for workers already envisaged in an international agreement ratified by our country. More precisely, in article 7 of Convention 158 of the ILO (International Labor Organization).
It states: “A worker shall not be terminated from employment for reasons relating to his conduct or performance until he has been afforded an opportunity to defend himself against the charges against him, unless this can be reasonably requested from the employer who grants this possibility. »
Below, we answer some key questions about the impact of the new ruling.
What changes in disciplinary dismissals?
The conditions required until now by companies to apply disciplinary dismissal were to notify the worker in writing of the facts which motivated the dismissal and the date thereof, as stipulated in article 55.1 of the Workers’ Statute.
However, three exceptions are considered with more guarantees: collective agreements, which can regulate more “formal conditions” in the event of disciplinary dismissal; staff representatives or union representatives, who have the right to have a contradictory file heard before dismissal, and if the employee is affiliated to a union, with the knowledge of the employer, when the prior hearing is already recognized .
“In the rest of the cases, until now, by issuing the letter of dismissal with immediate effect, alleging the reasons for dismissal in a concrete and clear manner, the conditions were met,” explains Esther Comas, labor lawyer of the cooperative Colectivo Ronda. . This letter is sometimes delivered to the people concerned remotely, “with a burofax, by WhatsApp or by email,” explains Comas.
According to the judgment, these immediate dismissals cannot be carried out, “given that the prior hearing procedure is integrated into the formal conditions applied until now,” emphasizes Professor Ana Belén Muñoz.
What should this “pre-hearing” look like?
Here begins the fine print and possible interpretations of the phrase. The Supreme Court does not establish a specific deadline or form on how this “pre-hearing” of workers must take place, although it does define some of the keys.
The judges emphasize that the ILO Convention introduces “a clear prior mechanism, which must be activated before or at the time of dismissal”. Its objective “is for the worker to be heard on the facts by the employer before he can make final decisions in this regard which he might not have taken with full knowledge of the facts”, adds the judgment.
The Supreme Court specifies that the ILO convention “says nothing else, nor requires anything special as to the manner of articulating this dialogue or this hearing of the worker”, even if it adds that this “does not does not prevent it from being sufficient. , as a minimum and sufficient requirement, “the worker having the possibility of being heard, which does not require greater precision”.
According to the ILO’s own formulation, which recognizes “the possibility of defending oneself against the accusations brought against him”, the union activist Esther Comas considers that “this implies time” for the worker to be able to evaluate the facts attributed to him . and be able to refute them. For example, to prove that you did not underperform or steal, if the company accuses you of these acts.
Comas, who considers that it would be necessary to legislate to clarify the application of this new right, considers that the preliminary hearing should give rise to at least a few days so that the worker can really defend himself and rejects the options in which the Charges could be filed an hour earlier with the worker, for example.
Adrián Todolí, professor of labor law at the University of Valencia, also believes that “it would be normal and logical to recognize several days” to allow workers to defend themselves and respect “the purpose” of the hearing, even if he recognizes that this question will surely be decided in court.
Notice to workers: what they say can be used against them
From the Colectivo Ronda firm, another of its lawyers, José Antonio González España, warns workers that, “like in the movies,” what they say in these allegations “can be used against them.”
Union activist Esther Comas recognizes the importance of this new phase prior to dismissal with a view to the future judicialization of dismissals, if they are ultimately carried out. “This is going to be very important for the defense strategy”, which is why he recommends that workers affected by these procedures “seek advice” when responding to the company. Either through union representatives or lawyers.
As a minimum general recommendation, Comas suggests that when faced with allegations or facts presented by the company – which, according to the union movement, must be presented in writing – the worker signs “not satisfied” and “with date”, as is is also usually the case. registered with dismissal letters. So that there is at least a record of when this preliminary hearing and the worker’s non-compliance took place.
Are there any exceptions for this new “preparatory hearing”?
The right recognized by the ILO provides for an exception, although it is very general. It establishes that this prior hearing must always take place “unless it is reasonably possible to ask the employer to grant this possibility”.
Here again, without legislation in the matter, Professor Adrián Todolí considers that the courts and jurisprudence will define what is “reasonable” in order to avoid this prior hearing. Regardless, Todolí points out that the Supreme Court emphasizes the exceptional nature of avoiding this procedure, which, in his opinion, would mean a “restrictive interpretation”.
“Exceptionally, this will be determined by the particular circumstances surrounding each case and which justify that the employer could not or should grant this possibility, which does not amount to avoiding it,” indicates the judgment.
Companies may claim that they do not recognize this pre-termination process because of possible destruction of evidence or because it is very confrontational for the person in question to continue with the company (imagine a case of harassment) , but union activist Esther Comas considers that this problem has already been resolved.
Since when does this new right apply? Does this have retroactive effects?
This is one of the most controversial issues in the Supreme Court’s ruling, as it only recognizes the right to a prior hearing in the event of dismissal following the ruling. No retroactive effect.
The judges emphasize the ILO exception – “unless it is reasonably possible to ask the employer to grant this possibility” – and consider that, given that the Supreme Court’s “peaceful” doctrine was different, it cannot be opposed to the companies which applied this right. before the new court criteria.
“This interpretation does not seem entirely fair, since the Supreme Court’s ruling corrects its own doctrine and, based on this premise, its immediate application would be reasonable, including dismissals pending a judicial resolution. Not choosing this path means subtracting a certain value from the direct application of Article 7 of the ILO Convention,” says Ana Belén Muñoz.
This point is, according to labor law specialists, likely to generate more disputes. “This will be the subject of many legal debates, which could even reach the Constitutional Court,” says Professor Eduardo Rojo on his blog.
What happens if I am fired without being able to defend myself?
The inadmissibility of the dismissal is the thesis most supported by analysts of the Supreme Court’s judgment. “Failure to comply with this new application condition results in higher labor costs, as the sanction of considering the dismissal as unfair with an increase in compensation is applied,” says Professor Ana Belén Muñoz. .
Esther Comas defends that in these cases we could fight for the treatment of wages, from dismissal without guarantees to conviction, because since this necessary procedure before dismissal has not been carried out, this should have the date of the judicial resolution, she appreciates the Labor member of Colectivo Ronda.
Since it is an unfair dismissal, the thesis of compensation for damages proposed by some courts, such as the Superior Court of Justice of Madrid, and “which has been followed by numerous resolutions” would be “discarded”, says Professor Ignasi Beltrán. his blog. On the other hand, Beltrán considers that “non-compliance with the prior hearing could be a key factor in recognizing possible additional compensation” higher than the legal amount assessed for unfair dismissals.
