Fire first, ask later: are express dismissals legal?

Legal melon in sight. The custom of suddenly dismissing a worker accused of indiscipline could be an illegal business practice. In recent months, the Spanish courts have put this way of proceeding, normalized in our country, under the microscope, which could, however, be contrary to an international treaty that Spain signed 37 years ago and that has remained forgotten in a drawer. Justice is debating whether companies should interview employees before dismissing them disciplinaryly, so that the workforce has the opportunity to defend themselves.

Recent sentences, all from this year, reflect the doubts of the magistrates in this thorny issue.

The issue has arisen as a result of what happened with different workers, expelled from their respective companies, who have invoked this agreement so that their dismissal is declared unfair. They all claim that they should have been summoned and heard before being expelled from their positions.

The debate has, in summary, two positions. On the one hand, the International Labor Organization (ILO) defends that workers should be called to a meeting to clarify the matter before being fired. This is what Article 7 of Convention 158 says, a treaty that Spain ratified in 1985. According to this provision, “the employment relationship cannot be terminated for reasons related to their conduct or performance.” [del empleado] before being offered the opportunity to defend himself against the charges.”

On the other hand, Spanish law does not provide anything about this hearing prior to expulsion. It does allow, however, instant dismissals. Our country made the commitment to reform its standards and adapt them to the ILO treaty, but no government tackled the task. The result now materializes in a legal train wreck between two regulations: the Spanish one, which does allow surprise dismissals, and the ILO Convention, which prohibits them. In the crossfire the judges do not agree.

The mess will likely reach the Supreme Court. A few days ago, Omar Molina García, director of the labor department at Augusta Abogados, sounded the alarm on his LinkedIn profile. “There are rulings that say that the hearing prior to disciplinary dismissal is mandatory and others that it is not,” summarizes the lawyer. Therefore, since there are contradictory rulings from courts of equal hierarchy, it is expected that the matter will end up in the high court, which now has the opportunity to unify doctrine and close the debate.

Molina highlights three problematic antecedents. Firstly, a ruling by the Superior Court of Justice (TSJ) of the Balearic Islands, from February 2023, on the sudden dismissal of a drama teacher, accused of harassing his students. The court found it “inexplicable” and “difficult to justify” that the professor was expelled “without having been previously heard” in the face of such serious accusations. So the court declared his dismissal as unfair.

Contradictory sentences

But in April, the Madrid TSJ took another path. “The court interpreted that, although the company had to open a hearing prior to dismissal, non-compliance did not imply inadmissibility, but rather opened the door to claiming extra compensation,” explains Molina García. To complicate the matter, the TSJ of Catalonia opted for a third option in July, and denied that companies are obliged to give this hearing because, in its opinion, Convention 158 does not have direct application in Spain. In five months, the courts have issued three different judicial criteria in cases with similar characteristics.

What is the opinion of the experts? Their assessments, like those of the magistrates, differ. The professor of Labor Law at the University of Salamanca, Wilfredo Sanguineti, one of the first jurists to denounce that companies were not complying with the ILO convention, defends this position tooth and nail. “Spain has not complied with the agreement for years and has tried by all means to defend that article 7 is not applied. The Spanish authorities allege that their legislation already offers guarantees to the worker, such as conciliation and the possibility of discussing dismissal in court. But the ILO commission of experts has recalled on numerous occasions that this is not enough.” And he adds: “The Constitution says that treaties are part of domestic law, I refuse to think that countries can ratify them and then not comply with them.”

Accepting that dismissals without a prior hearing are illegal would have uncertain consequences. Daniel Cifuentes, a labor partner at Pérez-Llorca, is inclined to think that, if this premise is accepted, not meeting with the worker would imply the inadmissibility of his dismissal, but not its nullity. This last option, reminds the lawyer, is reserved for “situations expressly provided for in the law.”

Of course, the partner accepts that “the omission of the prior hearing procedure can be used as an element to increase compensation in cases of unfair dismissal”, thesis put forward by the Madrid court. The expert’s recommendation is to be cautious: it is better to listen to undisciplined workers and then decide whether to expel or not. And of course, “record the meeting and leave a written record” and “allow the presence of workers’ representatives or their lawyers.” In view of the lurches of the courts, it is better to err on the side of caution.

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