The Supreme Court has ruled that the employer must offer the employee the opportunity to defend himself against the charges brought against him before terminating the employment contract for disciplinary dismissal.
The Social Division of the Supreme Court, sitting in plenary session and unanimously, in its judgment of November 18, 2024, appeal for the unification of doctrine 4735/2023, has ruled that the employer must offer the employee the possibility of defending himself against the charges brought against him, before adopting the termination of the employment contract for disciplinary dismissal. This decision is based on the need to apply, directly, art. 7 of ILO (International Labor Organization) Convention No. 158 of 1982 (in force in Spain since 1986).
In this way, the Court modifies its own doctrine, established in the 1980s, which it justifies by “the changes that have taken place in our legal system during all this time” (Law of International Treaties, constitutional doctrine, qualification of the dismissal, inapplicability of the most favorable norm globally).
The ILO Convention requires such a hearing prior to dismissal “unless it cannot reasonably be requested of the employer” and the Fourth Chamber understands that this is what happens in the case.
The company was protected by a jurisprudential criterion that, having remained in time and in relation to that same provision, freed it from such a requirement.
Therefore, the Supreme Court has determined that this doctrinal change will only be applicable to disciplinary dismissals carried out after the publication of the ruling.
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