Although many employers tend to think that the Workers’ Statute only establishes protection systems for their employees, the truth is that it also provides a series of rights that protect employers themselves and allow them to establish disciplinary sanctions for those who do not comply with their obligations in the work environment. Although for this It is necessary to follow a series of requirements.
As labor lawyer Ignacio de la Calzada explains, This right is called disciplinary power and is included in articles 20, 54 and 58 of Royal Legislative Decree 2/2015, of October 23, better known as the Workers’ Statute Law. According to their provisions, the employer has the possibility of exercising three types of sanctions: verbal or written reprimands; suspension of employment and salary; and, as a last resort, disciplinary dismissal.
However, many employers complain about the impossibility of imposing such sanctions or dismissals without them ending up being overturned by a judge. “Businessmen complain about this: ‘I can’t do anything because then it turns out to be inappropriate or because then they throw it back,’ and It’s true because it’s done wrong.“says the lawyer. Remembering the need to comply with current regulations to carry out this type of disciplinary acts.
What is disciplinary power and how is it exercised?
According to the lawyer, in order for an employer to exercise his disciplinary power, it is necessary to previously communicate to the employee the rules and prohibitions relating to his job. “A worker must be informed of both his obligations and the company’s rules and it is not worth saying it out loud; it must be done in writing“, sentence.
One of the most common problems that prevent appropriate dismissals is the lack of formal communication by the employer. The lawyer relates cases as common in the workplace as the use of the mobile phone during the day for unjustified reasons, which is only legally classified as work misconduct for the hospitality sector, or not clocking in during work breaks. Issues for which, instead of seeking effective solutions, some tend to just complain.
“Don’t complain and communicate it,” urges Ignacio de la Calzada. However, it should not only be done orally, but it is also necessary to dedicate time to writing a formal email or written request in which all the rules and obligations of workers appear, as well as the prohibitions related to their job. “A reminder with all the company rules“, he simplifies.
The company must give prior notice so that the sanction or dismissal is legal
Well, otherwise, when you want to impose a sanction or directly terminate the contract in a disciplinary manner for carrying out said prohibited action, justice may consider it inadmissible. Something that happens if the judge considers that the company repeatedly tolerated such conduct or if it is demonstrated that the company has not made this rule known to the worker.
“What you have to do is first notify and then it is sanctioned. and even dismissal in a manner proportionate to the situation,” advises the lawyer. Because this way the company will be able to demonstrate that it is an attitude that has continued over time for which it has previously been asked to resign. Although it should be taken into account that, for the termination of the contract to be considered appropriate, it must be notified in advance and in writing to the worker, including the reason and the date on which it will take effect.
Furthermore, according to a recent ruling by the Supreme Court, the company has the obligation to open a hearing procedure in which the employee can defend himself. To carry out this defense, the worker must have a period of 2 to 5 business days, so that he can look for a lawyer to defend his case. Although the ruling does not establish how the prior hearing should be carried out, so it remains at the disposal of the company.