Formalities of Dismissal and Prior Hearing

The Supreme Court (SC), in its ruling of November 18, 2024 (1250/2024), aimed at unifying doctrine, addresses whether, under Article 7 of ILO Convention No. 158, ratified by Spain, disciplinary dismissal requires, as a formal prerequisite, a prior hearing of the employee before the employer makes the dismissal decision.

Two separate issues arise. The first concerns whether Spanish law complies with the requirement of Article 7 of ILO Convention No. 158. The second pertains to the possibility of Spanish courts directly applying this requirement if the answer to the previous question is negative. The Supreme Court's unified doctrine radically changes its previous stance. Previously, it was clear: Article 7 should be understood according to its purpose—ensuring the employee’s real opportunity to defend themselves. This guarantee was considered fulfilled by the formal system established in Article 55.1 of the Workers' Statute. Consequently, the absence of a prior hearing procedure was not seen as a violation of the formal dismissal requirements or their guarantees since these were met through the system outlined in Article 55.1 of the Workers' Statute.

The SC has also held that the aforementioned Article 7 "is not directly applicable", as it requires legislative development. That article should be related to Article 1 of the Convention itself, which recognises "in general terms the non-enforceable nature of its rules, which may be applied only by way of exception and in accordance with national practice, without the regulatory mediation of domestic law". For the SC, Article 7 could not be understood as falling within this exception, as a judicial action to implement an international provision was not authorised, ignoring the various possibilities for such implementation and the broad system of exceptions, not only subjective but, above all, objective, which may be applicable in relation to the criterion of reasonableness of the company's refusal to hear the case.

Despite this clear doctrine, the SC goes on to consider that the prior hearing of the dismissed employee is something that is added to his or her possibilities of appealing the dismissal, without being "absorbed" by these. Article 7 of ILO Convention No. 158 "imposes a right to a hearing of the employee prior to the termination by disciplinary dismissal which may be adopted by the employer and this is enforceable and must be complied with". And the prior hearing cannot be understood as guaranteed, nor can it be confused with the possibility of appeal. "The hearing of the employee prior to being notified of the disciplinary dismissal and the actions that must be carried out subsequently to challenge the dismissal measure adopted by the employer are different moments". The existence of possibilities of appeal against dismissal does not eliminate the requirement of a hearing prior to its adoption. And finally, a "criterion of fairness" also requires such a prior hearing.

All this being said, it is necessary to answer the other question: if Spanish law does not guarantee compliance with the formal requirement of prior hearing of the employee in cases of disciplinary dismissal, can the courts give direct application to the mandate of Article 7 of ILO Convention No. 158? The SC states that "its direct application is appropriate as it is a provision that must be qualified as complete or automatically applicable, without the need for implementing rules to be issued by Spain, as its terms are sufficiently and duly defined".

Given that this is a radical change of criterion, it is necessary to justify it, and the judgement proceeds to do so, albeit with arguments that are certainly not very consistent.

Firstly, reference is made to the approval, after the judgments containing the preceding doctrine, of the Law on Treaties and other International Agreements (Law 25/2014, of 27 November), which proclaims, in its Article 23.3, that international treaties validly concluded become part of the Spanish legal system after their official publication. But it is not clear what this law innovates in this respect, bearing in mind that Article 96.1 of the Constitution already proclaims that "validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order". The appeal to Law 25/2014 is not sufficient to justify a change of criterion.

Secondly, reference is made to the control of conventionality, which has acquired "a charter" in the last "half a dozen years". However, while this control of conventionality may be used to carry out (debatable) operations of displacement of domestic law due to its alleged contrast with international or European standards, in no case does it seem that it can in itself become the reason or basis for a drastic change of interpretative criterion.

Thirdly, reference is made to the abolition of processing wages, which "has deprived the theories of termination of the contract only when the order terminating the employment relationship was issued". However, the termination effectiveness of the act of dismissal had already been upheld in scientific and judicial doctrine prior to the abolition of processing wages, so it does not seem that this abolition is sufficient reason for a change of doctrine either.

Fourthly, reference is made to the elimination of null and void dismissal due to formal deficiencies, which does not really seem to have any bearing on the issue.

And, finally, it is stated that "the absence of a clause of greater overall favorability of domestic regulation with respect to guarantees is now more relevant". Nor is it clear why this could be an argument for the change of doctrine.

This weakness of the reasons that could be the basis for a change of criterion would have made a more nuanced judicial decision advisable, compelling the legislator to make a regulatory modification that would ensure respect for the new interpretation of the requirements of Article 7. Going straight to the point of requiring a prior hearing in disciplinary dismissals, probably going beyond the control of conventionality (the court is stating that we are not dealing with a derogation of the internal rule, but with its mere inapplication to the specific case, which is clearly not true because it maintains the need for the new procedure for all disciplinary dismissals), generates a situation of legal uncertainty that should be addressed by a legislative intervention to review our legal regime of disciplinary dismissal.

For now, some certainties and many uncertainties:

• Prior hearings are required for disciplinary dismissals but not for objective or collective dismissals.
• The hearing only requires giving the employee "the opportunity to be heard" without further precision.
• The hearing will be on the 'facts' alleged by the employer and will not therefore extend to the legal classification of those facts or to whether they fall within the legal or contractual provisions relating to the grounds for dismissal.
• Despite the Court's statement that the requirement of a prior hearing does not require further clarification, a number of questions arise: should the employee's acceptance of the facts alleged preclude his subsequent denial of those facts in the event of a legal challenge to the dismissal; would a failure to refute the facts alleged be tantamount to acceptance of those facts; and can the employee, in the face of a legal challenge to the dismissal, rely on the fact that the facts alleged are not disputed? May the employee plead in court circumstances other than those taken into account at the hearing, and may the facts acknowledged by the employee, even if they were obtained unlawfully, have value in court, and what value must the legal arguments put forward at the hearing have for the courts?
• And can the employer impose a precautionary suspension of employment and pay on the employee during the pendency of the proceedings?

As can be seen, a situation of great legal uncertainty has arisen, in which, in disciplinary dismissals, a prior hearing of the dismissed employee must be respected, which requires only that he be heard (except in exceptional circumstances) but which is surrounded by numerous legal questions.