Before notifying an employee of a disciplinary dismissal, a business should review the alleged conduct, the evidence, the collective agreement and the employee's rights of defence. Preparing a detailed letter is important, but it does not replace the steps that must be completed before making the decision.
The prior hearing deserves particular attention. Article 7 of ILO Convention No. 158 provides for an employee to have an opportunity to defend themselves against allegations concerning their conduct or performance before termination, unless the employer cannot reasonably be expected to provide that opportunity. Spanish Supreme Court case law has changed the way this safeguard is approached in Spain.
The hearing should not become an empty formality
The opportunity to respond should be given while the employee's explanation can still be considered. A communication presenting the decision as irrevocable may create a different dispute from the one the business intended to avoid.
It is not advisable to copy a template that always imposes the same response period. The circumstances, the information the employee needs to know and any additional rules in the collective agreement should be examined. Safeguards for employee representatives and trade union members may require specific steps.
Organise the file before drafting the letter
Compile a chronology with verifiable dates and separate observed facts from opinions about the person. If there are emails, records or images, how they were obtained and whether they can lawfully be used should also be checked.
A useful review includes:
- Specific facts and documents supporting them.
- The date on which the business became aware of them.
- The collective agreement and the possible classification of the conduct.
- Earlier communications, the hearing and the response received.
- Protected situations and representation safeguards.
Selecting evidence is not about accumulating personal data. It is preferable to retain relevant material and understand the limits on its use than to build a large file containing information unrelated to the dispute.
Seriousness, proportionality and consequences
Questionable conduct does not, by itself, justify any sanction. Its seriousness, context and legal classification must be assessed. The employee's response may reveal an organisational error, prior authorisation or facts requiring verification.
If the dismissal is challenged, its classification will depend on substantive and procedural issues. It should not be asserted that omitting any step automatically makes a dismissal void: the specific consequence requires a study of the legislation, case law and the case itself.
Two frequently asked questions
Can the hearing take place after the letter has been delivered?
A later explanation should not automatically be treated as equivalent to a safeguard intended to apply before the decision. If the dismissal has already been notified, it is advisable to review immediately what happened and what options are available.
Is the employee's signature on the letter enough?
Depending on the circumstances, a signature may prove receipt, but it does not, by itself, resolve the dispute about the grounds or show that an adequate prior opportunity to defend themselves was provided.
If your business is considering a dismissal, you can request a review through our employment advice for businesses service. The initial consultation carries a fee, which is communicated before it is confirmed. This article provides general information and does not replace an examination of the case file.
