The worker’s right to a prior defense against disciplinary dismissal

Abstract

Judgment No. 1250/2024 of 18 November, delivered by the Plenary of the Social Chamber of the Supreme Court of Spain, establishes that, prior to adopting a termination decision based on disciplinary dismissal, the employer must ensure that the employee is afforded the opportunity to defend themselves against the facts or allegations attributed to them. The significance of this ruling is unquestionable, as it represents—by departing from the previous case-law doctrine— the recognition of the direct applicability of Article 7 of the ILO Convention No. 158, which has been in force in Spain since 1986. However, more than a year has passed since this judicial decision was issued, and the domestic legal framework specifically Article 55 of the Workers’ Statute has still not been amended to incorporate this guarantee. Pending this necessary legislative recognition, numerous questions arise regarding the configuration of this right, ranging from its scope of application to the consequences deriving from its breach, as well as various formal and substantive aspects concerning its legal structure. The present study is devoted to analysing the right to a prior defence and its legal configuration, taking as its starting point the pre-existing legal framework surrounding this issue and the paradigm shift brought about by the aforementioned judgment of 18 November 2024.