As a result of the STS of November 18, 2024, companies are obliged to offer a hearing prior to dismissal. In this sense, this prior formality is imposed on companies.
The first formality is that the employee is notified in writing. Regarding deadlines, nothing is stated in the case law, but a reasonable period of 24 to 48 hours can be applied so that the employee can respond to this notification and can present the appropriate allegations on the facts described in the same letter.
Can companies omit this formal procedure prior to dismissal?
As a general rule, this formality must be complied with, in order to avoid that the dismissed person finally notified is not classified as unfair. There are exceptions and exceptional situations that could allow the omission of this procedure, but the exception does not apply automatically.
The company must justify expressly and in detail, in the letter of dismissal and in the internal documentation, the concurrence of the exceptional situation that prevents the prior hearing. Such as, for example:
– Material impossibility to contact the worker.
– Imminent statute of limitations.
– Conduct evidently recognized and proven.
– Serious incidents that endanger the continuity of the company or the safety of persons and property, where the delay due to the hearing process could cause irreparable damage (harassment, physical aggression, serious threats…).
However, this circumstance must be indicated in the dismissal letter, and the reason for the omission of this formality must be stated.
During the time given to the employee to respond to the hearing, the company may grant paid leave, maintaining the salary and contribution, i.e., suspension of employment, but not of salary.
Medical leaves of absence of workers after the communication -> There would be no direct connection between the illness and the dismissal and there would not be sufficient evidence of discrimination on the grounds of illness that could lead to the nullity of the dismissal.
However, in order to avoid legal disputes as to the time of each event, it is recommended that the date and time of notification be clearly stated in the notice of the commencement of the hearing.
At Martinez & Caballero Abogados we will be pleased to advise you!
Sheila Quiroz Sifuentes
Lawyer Expert in Labor Law
M&CAbogados
