Pre-dismissal hearing in cases of disciplinary dismissal: how should it be conducted?
With the well-known Supreme Court Judgment (STS) 1250/2024 of 18 November, the legal doctrine regarding how to carry out disciplinary dismissals has changed. Since then, before proceeding with a disciplinary dismissal, the employer must offer the employee an opportunity to defend themselves against the allegations made.
Obligation to hold a pre-dismissal hearing in disciplinary cases
As such, a disciplinary dismissal will not be deemed fair (procedural) if the employee has not been given the chance to defend themselves beforehand.
Prior to this ruling, it was only mandatory to initiate a disciplinary proceeding (equivalent to a pre-dismissal hearing) for members of the Legal Representation of Workers (RLPT) or where required by the applicable collective bargaining agreement. Now, this hearing is mandatory in all cases.
It should be noted that, if provided for by the collective agreement, this procedure may also apply to sanctions such as suspension from work and pay.
Consequences of failing to hold a pre-dismissal hearing
Failure to comply with this procedure—better described as a requirement—would automatically render the dismissal unfair, even if there are sufficient grounds to justify it.
Although a certain degree of reasonableness may be accepted in exceptional situations where the employer can justify why the hearing could not or should not have been granted (which is not the same as avoiding it), the safest approach from a legal standpoint is always to provide the hearing.
What does a pre-dismissal hearing involve?
The pre-dismissal hearing is essentially a process allowing the employee to be heard before they are dismissed.
It is the employee’s right to defend themselves before a decision is taken regarding their disciplinary dismissal. The employer must inform the employee of the charges against them and allow them the opportunity to make representations. The goal is to ensure a fair and transparent process.
Is the pre-dismissal hearing the same as a disciplinary proceeding?
It serves a similar function. A disciplinary proceeding is more formal and regulated, whereas the pre-dismissal hearing is simpler—though it is recommended to follow a process similar to that of a formal proceeding.
How should the pre-dismissal hearing be conducted?
There is no specific regulation that dictates a particular format for this hearing (unless otherwise stated in the applicable collective agreement). However, it is advisable to follow certain formalities to ensure legal certainty:
Provide the employee with sufficient detail regarding the facts alleged and the reasons for considering their dismissal.
Allow the employee to present their defence before a final decision is made.
- Properly document the process to avoid future legal claims.
For this reason, it is always recommended that the process be carried out in writing.
That said, some court rulings have accepted that the requirement may be met orally, provided that the charges are clearly explained and the employee is given a chance to respond. This might be done through a conversation with the HR manager or a meeting with the company in the presence of employee representatives.
Can we be asked to provide evidence during the hearing?
It is important to emphasise that this is a hearing process. The employee must be made aware of the accusations and be given an opportunity to respond. This does not mean that evidence must be presented or that a formal evidentiary phase must be established.
Therefore, even if the employee requests evidence, there is no obligation to provide it at this stage. Any such evidence can be presented later during the appropriate legal proceedings, if necessary.
Duration of the pre-dismissal hearing
How long should this process last?
Although there is no legally established period, it is advisable to allow 2–3 days for the hearing to take place, as this is considered a reasonable timeframe for the employee to be heard.
However, depending on the facts, a shorter timeframe may be set. For example, in a clear case of theft, a 24-hour period might suffice without rendering the dismissal procedurally unfair due to a formal defect.
Can the hearing be held on the same day as the dismissal?
Yes, some court rulings have accepted this, provided that the charges are clearly communicated and the employee is given an opportunity to defend themselves. However, it is always preferable to allow more time to avoid the risk of the dismissal being declared unfair due to a procedural fault.
What if the employee goes on sick leave?
If the employee begins a period of temporary incapacity during the procedure, it does not affect the process, as the grounds for the dismissal would have occurred prior to the medical leave and are unrelated to it.
Nonetheless, situations like this highlight the importance of the employer precisely documenting the date and time when the hearing procedure was initiated, to avoid potential legal complications.
Conclusion
The pre-dismissal hearing in cases of disciplinary dismissal has now become a fundamental requirement for a dismissal to be considered fair.
While there is no defined procedure (unless regulated by collective agreement or future legislation), the employer must clearly communicate the allegations, provide a proper hearing opportunity, and document everything properly. This will ensure the dismissal is legally valid and avoid future claims for unfair dismissal.
It is vital that dismissals based on legitimate grounds are not undermined by procedural errors.
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