The pre-dismissal hearing for the employee: a new formal requirement for disciplinary dismissal

On 18 November, the Labour Chamber of the Supreme Court handed down Judgment 1250/2024, RCUD 4735/2023, which represents a substantial shift from the legal position that the court had previously maintained regarding the procedure for disciplinary dismissal.

The judgment establishes that, in compliance with the provisions of Article 7 of Convention No. 158 of the International Labour Organisation (ILO), companies must hold a hearing with an employee before proceeding with disciplinary dismissal, even though this requirement is not generally provided for in Article 55.1 of the Workers’ Statute — which only provides for it in relation to legal or trade union representatives — nor in the applicable collective agreement.

The purpose of this requirement is, according to the High Court, “that the employee be heard by the employer regarding the facts before the employer can take final decisions on the matter which, with that knowledge, the employer might not have taken”, and therefore this prior hearing is presented as “a formal act within the legitimate exercise of the disciplinary power vested in the company”. Thus, although the Court does not expressly rule on the matter, it does not appear that the mere failure to grant the employee a hearing will directly result in the dismissal being null and void, but rather in it being unfair, as is the case with the other formal requirements established by law or collective agreement for disciplinary dismissal.

The ILO Convention itself exempts the prior hearing for the employee in those cases where “the employer cannot reasonably be expected to grant this opportunity”. In this regard, the Supreme Court considers that the fact that previous case law did not require a prior hearing as a formal requirement for disciplinary dismissal may be regarded as a reasonable ground for companies not having complied with this procedure prior to the change in doctrine; consequently, the requirement for this formal procedure is only applicable to disciplinary dismissals carried out following the publication of this new judgment.