Attention to workers, a ruling from the Supreme Court establishes a new obligation for companies and modifies their own doctrine. From this moment on, those companies that are going to dismiss any of their employees for disciplinary reasons will not be able to do so immediately, but rather They must allow the affected person to defend themselvesas Raúl Gómez recalled.
Before this change, “the company investigated internally, wrote a dismissal letter, delivered it and if the worker was not satisfied they would go to SMAC, the court or wherever necessary,” explained the lawyer and collaborator of the program ‘No son hombres’ on “Onda Cero”. However, they must now give the employee the opportunity to can defend himself against accusations for which his contract is intended to be terminated.
This modification comes with ruling number 1250/2024 issued by the Social Chamber of the High Court and is based on article 7 of Convention number 158 of the International Labor Organization of 1982. This convention has been in force in Spain since 1986, however, it was not applied by decision of the Supreme Court until, unanimously, They have decided to change their own doctrine.
When can a disciplinary dismissal occur?
First of all, it is important to define when and why a disciplinary dismissal can be carried out. This is the most serious sanction that a company can impose and occurs when the employee has committed serious offenses that justify the termination of their contract. Therefore, It cannot be due to an economic issue or poor performance of an employee, but to causes that truly justify the dismissal.
Among the reasons why this type of dismissal can be carried out are: unjustified lack of attendance or tardiness, offenses to workers or bosses, disobedience at work, a voluntary and relevant decrease in performance, arriving while intoxicated or engaging in discriminatory harassment, among other attitudes. Are must be explicitly stated in the dismissal letter.
Although previously this letter was sufficient to carry out the dismissal, and the worker could then appeal the decision to the corresponding body, now he will be able to defend himself before the termination of his contract. However, the sentence It did not establish how this procedure should be carried out nor the period in which it had to be done. This is when labor lawyers come in.
The prior hearing cannot be held within a period equal to or less than 24 hours.
As Gómez explains, some companies decided to “open a practically symbolic hearing process.” With this decision, the companies give the worker a period of 24 hours to find a lawyer to defend their case. A solution that has not seemed to convince the Superior Court of Justice of Asturias, who in a ruling issued on April 28, declared that this time period was not enough so that the employee could defend himself against the accusations correctly.
Due to this, the Social Chamber established that the disciplinary dismissal of the worker was inadmissible, since the applicable agreement provided for a period of 3 working days to be able to present the defense. Well, as the lawyer explains, the Supreme Court’s resolution sought to ensure that the worker had “the certain possibility of defending himself, which could hardly be achieved in such a short period of time“.
A sentence that is causing quite a few problems in the courts
However, this is not the only problem that has arisen around this ruling, since each company has established a way to comply with this evaluation. According to the lawyer, while some companies have chosen to ignore this modification, others have created “internal protocols and human resources departments trying to adapt to the procedure on the fly“.
A situation that is causing quite a few headaches in the courts. What the ruling of the Asturian Court of Justice has made clear is that the period given to the worker to find a lawyer to defend his case and appeal the decision of unfair dismissal is inadmissible.should not be equal to or less than 24 hours.
However, because the sentence does not establish how this prior hearing should be carried out, lawyer Raúl Gómez warns that “very likely We are going to see a lot of litigation with this and several directly contradictory rulings until jurisprudence ends up defining exactly how much time is reasonable and how this process should be articulated.”