If you need immediate advice on disciplinary dismissals or have any questions regarding the preliminary hearing and the established timeframes, please do not hesitate to contact Fernanda Vargas via WhatsApp or schedule an appointment. In this article, we provide an in-depth analysis of disciplinary dismissals in Spain in 2026, emphasizing the mandatory preliminary hearing and the reasonable timeframes for workers to exercise their right to defense.
What is the Preliminary Hearing in a Disciplinary Dismissal and Since When is it Mandatory?
The preliminary hearing is an essential procedural step that requires employers to offer the employee a real and effective opportunity to present their defense against the charges brought against them. Following the TS 1250/2024 ruling, the preliminary hearing is no longer a mere formality but a mandatory requirement for validating a disciplinary dismissal, grounded in Article 7 of the ILO Convention 158, which has been in force in Spain since 1986.
Article 7 of ILO Convention 158 and Its Direct Application in Spain
Article 7 of ILO Convention 158 stipulates that an employment relationship cannot be terminated without first offering the employee the chance to defend themselves against the charges. This international norm, which has been binding since Spain ratified the convention in 1986, has become increasingly important following the recent Supreme Court ruling, reinforcing legal security and protecting fundamental employee rights.
TS 1250/2024 and the Evolution of Doctrine in 2025 and 2026
The Supreme Court ruling TS 1250/2024 marked a turning point by requiring the implementation of the preliminary hearing procedure. Throughout 2025 and 2026, legal doctrine has adapted to strictly enforce this requirement for dismissals, limiting its retroactive application only to dismissals that occurred after the ruling’s publication, thus ensuring that previous conduct by companies is reasonably protected.
Dismissal Can No Longer Be Immediate: The Two-Step Procedure
The new doctrine divides disciplinary dismissal into two clearly defined stages. First, an administrative procedure is initiated by opening the preliminary hearing, during which the employer delivers a written statement of charges and grants the employee a reasonable period to submit their defense. Only after this process, and once the employee’s arguments have been documented and evaluated, can the dismissal letter be issued. This two-step procedure ensures the employee’s right to a genuine defense.
How Much Time is Given to Submit a Defense and Why 24 Hours is Not Enough
According to various judicial decisions, such as the STSJ of Asturias case no. 70/2026, a 24-hour period is insufficient to ensure an effective defense. Legal practice and specialized doctrine recommend a timeframe ranging between two and five business days, depending on the complexity of the charges and the employee’s ability to consult legal or union representation.
How to Execute the Procedure Correctly: Charge Letter, Defense, and Proof of Delivery
The proper procedure begins with drafting a charge letter that clearly and precisely details the allegations. It is essential that this communication be made in writing, that the date and time of delivery are documented, and that a reasonable period is provided for the employee to submit their defense. Furthermore, having a reliable method to prove receipt, such as a delivery acknowledgment, is indispensable in order to avoid future disputes and confirm the employer’s adherence to proper protocol.
Consequences If the Employer Fails to Conduct the Preliminary Hearing: Dismissal Deemed Unjustified, Nullity, and Prescription of the Infraction
Failure to conduct the preliminary hearing carries significant legal consequences. Typically, it leads to the dismissal being declared unjustified, in line with Article 55.4 of the Workers’ Statute. However, nullity is reserved only for extreme cases, such as when discrimination or breaches of fundamental rights occur. Moreover, initiating the preliminary hearing procedure may also interrupt the prescription period for the alleged infraction, protecting the employer from claims that the process compromised their position.
When is the Preliminary Hearing Not Required: The Exceptions Under Convention 158 and Their Strict Interpretation
Article 7 of ILO Convention 158 provides exceptions in which it may not be reasonable to grant the employee a defense opportunity. Typical exceptions include cases of extreme urgency, the inability to locate the employee, or the risk of evidence being destroyed. However, judicial interpretations of these exceptions are extremely strict and are applied only when fully justified, thereby continuing to offer protection to the vast majority of employees.
Contradictory File Procedure and Collective Agreements: Additional Safeguards
The preliminary hearing complements other defense mechanisms, such as the contradictory file procedure mandated by Article 55.1 of the Workers’ Statute. Many collective agreements also provide for additional requirements regarding timeframes and formalities. These overlapping safeguards ensure that the employee’s rights are sufficiently protected by not replacing but rather supplementing each other.
What to Do If You Are Dismissed Without a Preliminary Hearing: 20 Business Days, Conciliation, and Legal Action
If an employee is dismissed without the preliminary hearing, the law establishes a strict period of 20 business days to challenge the dismissal. This deadline, considered a period of forfeiture, begins from the effective date of the dismissal. During this timeframe, the employee can seek conciliation or proceed with a legal claim to protect their labor rights.
Impact on Foreign Workers: Effects on Residence and Work Authorization
For foreign workers, a disciplinary dismissal not only terminates the employment relationship but also interrupts their contribution history, which is critical for the renewal of residence and work authorizations. Maintaining a continuous record of employment and contributions is key to securing long-term residence or even nationality by residence. Thus, it is imperative that all documentation—charge letter, dismissal letter, submitted defenses, and the employer’s certificate—is preserved.
Compliance Checklist for Companies and HR Departments
To avoid future legal disputes, companies should adhere to the following checklist:
- Prepare a clear and detailed charge letter.
- Document the date and confirmation of receipt of the communication.
- Provide a reasonable period (typically two to five business days) for the employee to submit their defense.
- Properly record and assess the employee’s response.
- Integrate the preliminary hearing within the contradictory file procedure and abide by any additional requirements imposed by collective agreements.
Frequently Asked Questions
Is the preliminary hearing mandatory in all cases?
Yes, it is mandatory for most disciplinary dismissals, except in those rare, strictly justified cases as outlined in Article 7 of ILO Convention 158.
What is the recommended timeframe for submitting a defense?
While 24 hours is generally seen as insufficient, a period between two and five business days is recommended to ensure an effective defense.
What are the consequences if the preliminary hearing isn’t conducted?
Failure to conduct the preliminary hearing generally results in the dismissal being declared unjustified, although nullity only applies in cases of discrimination or violation of fundamental rights.
Conclusion and Legal Notice
The doctrinal and jurisprudential evolution regarding disciplinary dismissals has firmly established the preliminary hearing as an indispensable safeguard for employees. The information provided in this article is based on current, binding law and recent Supreme Court jurisprudence. It does not constitute individualized legal advice, so it is always advisable to consult a legal professional if you encounter a related issue.
If you need further details or personalized advice, remember that you can contact Fernanda Vargas via WhatsApp or schedule an appointment to discuss your specific case.