Employment and pensions

The right to a prior hearing in the disciplinary dismissal procedure

Published on 27th Mar 2023

The High Court of Justice of the Balearic Islands declared the disciplinary dismissal of a worker to be unlawful because he had not been given the opportunity to defend himself prior to his dismissal

Close up of people in a meeting, hands holding pens and going over papers

The High Court of Justice of the Balearic Islands declares that the disciplinary dismissal of an employee was unlawful because he had not been given the opportunity to defend himself prior to his dismissal.

The Judgment of the Social Division, fourth section, of the High Court of Justice of the Balearic Islands of 13 February 2023 is relevant in that it represents a break in case law with respect to the line of argument upheld by other courts that have admitted the possibility of imposing disciplinary sanctions without the need to hold a prior hearing with the workers affected.

A controversial case

The case involves an employee who was dismissed for alleged sexual harassment of female students at a drama school. Following the submission of a letter signed by 54 students, an internal investigation was launched into the inappropriate behaviour of the teacher in question, which resulted in his immediate dismissal.

The employee challenged the dismissal decision, arguing that the disciplinary procedure provided for in the Basic Statute for Public Employees (EBEP) had not been followed. However, this claim was dismissed, since the disciplinary regime regulated in that Statute is not applicable to private entities operating in the public sector.

The application of ILO Convention 158

It should be noted that, although the disciplinary regime does not apply, the judiciary has the power to apply the relevant international standards in the event of conflict with domestic law, within the framework of the application of the conventionality control.

This is why the judgement is based on Article 7 of Convention 158 of the International Labour Organisation, which provides that a worker's employment relationship should not be terminated for reasons related to his or her conduct or performance before he or she has been given the opportunity to defend himself or herself against the charges brought against him or her. This is a formal requirement, the non-fulfilment of which irremediably results in the dismissal being classified as unfair.

The Court considers that the decision taken by the management of the establishment is disproportionate because it was obliged to provide him with full information about the accusations against him and to give him the opportunity to express his version of the facts before dismissing him. As a result, these circumstances determine that the disciplinary dismissal of the employee is unjustified.

Implications of the judgment

The judgement in question is of indisputable legal value, in that it highlights a procedural nuance inherent to disciplinary dismissal that had been completely overlooked and, therefore, substantially redefines the guidelines that must be observed in the processing of the dismissal, with consequent and notable implications for the classification of the dismissal as termination.

It is clear that, despite the fact that article 55.1 of the Workers' Statute does not explicitly refer to this formal requirement, failure to comply with it leads to the termination of the employment relationship being considered illegal and, therefore, unfair dismissal.

For all these reasons, the judgment in question opens up a relevant area of interpretation with regard to its material content and the minimum threshold required to understand that it has been duly complied with, provided that this criterion is confirmed by the Supreme Court.



* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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