For a disciplinary dismissal to be upheld as fair in Spain, the employer must prove a serious and culpable breach, apply a proportionate sanction, and have properly carried out a pre-dismissal hearing with the worker.
A mere irregular conduct is not enough: the courts require the employer to demonstrate, with specific facts and objective evidence, how, when and under what circumstances the breach occurred.
In this article we explain the requirements a disciplinary dismissal must meet to be upheld, the role played by the dismissal letter, when the pre-dismissal hearing is mandatory, and which types of evidence prove decisive in court proceedings.
What is a disciplinary dismissal and when does the law allow it?
Article 54 of the Workers’ Statute regulates disciplinary dismissal as the termination of the contract based on a serious and culpable breach by the worker. The law lists various types of conduct that can justify this measure: repeated and unjustified absences or lateness, insubordination or disobedience, verbal or physical abuse, breach of contractual good faith, abuse of trust, voluntary and sustained drop in performance, or conduct related to harassment and discrimination.
The abstract existence of one of these types of conduct does not automatically mean the dismissal will be upheld. The employer must prove that the specific conduct fits the alleged ground and contains the elements needed to justify the most severe sanction available within the employment relationship.
What must the employer prove for the dismissal to be fair?
Proof of the facts is one of the central elements in any disciplinary dismissal case. The employer must be able to demonstrate specific, identifiable and sufficiently serious conduct. Generic statements about loss of trust, inappropriate attitude or breach of duties are insufficient unless backed by verifiable facts.
For this reason, the courts pay close attention to the precision of the dismissal letter. It is not enough to state that the worker has breached their obligations: the employer must explain what happened, when it happened, what consequences it had, and why that conduct justifies termination. A lack of specificity can prevent the worker from properly understanding the grounds for the decision and limit their defence in the court proceedings, amounting to the denial of a fair hearing prohibited under Article 24 of the Spanish Constitution.
Why is the dismissal letter so important?
A disciplinary dismissal letter is not a mere formal notice. It is the document that defines the facts the court will later be able to examine. A properly drafted letter must clearly identify:
- The specific conduct being alleged, in detail.
- The circumstances of time, place and manner in which it occurred.
- The exact timing of the facts.
- The seriousness of the breach.
- The causal link between the facts and the sanction applied.
Under Article 105.2 of Law 36/2011 of 10 October, governing employment tribunal proceedings, the employer will not be allowed to raise, at trial, any grounds of defence other than those set out in the written dismissal letter. The employer cannot later add to or amend the grounds during the court proceedings. For this reason, an overly generic letter can turn a potentially valid business decision into an unfair dismissal for insufficient evidence.
Is a pre-dismissal hearing mandatory in Spain?
Yes. A doctrinal shift of major significance has become settled law, redefining the formal requirements for a valid termination. Under the direct application of Article 7 of International Labour Organization (ILO) Convention No. 158, categorically adopted by the Supreme Court’s case law in its judgment of 18 November 2024, issued on appeal for unification of doctrine (Roj: STS 5454:2024 · ECLI: ES:TS:2024:5454), employers can no longer unilaterally terminate an employment relationship on conduct or performance grounds without carrying out a pre-dismissal hearing.
This mandatory step requires giving the worker a genuine opportunity to defend themselves against the charges, by submitting their own representations, before the dismissal decision is adopted and notified. This is a mandatory formal requirement conditioning the exercise of the employer’s disciplinary power: failing to carry out the hearing, or failing to provide the elements needed for an effective defence, will render the dismissal unfair on formal grounds.
What evidence proves decisive in disciplinary dismissal disputes?
Whether a disciplinary dismissal is upheld largely depends on the quality of the evidence provided by the employer. The following may prove relevant in court proceedings:
- Internal communications and corporate emails.
- Internal reports and audits.
- Activity and access logs.
- Witness statements (colleagues, clients or suppliers).
- Internal policies and codes of conduct, duly notified to and known by staff.
- Records of prior warnings or disciplinary sanctions.
Evidence should not be viewed as something gathered only once a dispute arises — it is part of how the employer manages the breach in the first place. A company with internal investigation protocols, adequate monitoring systems and organised documentation is in a far stronger legal position if the dismissal is challenged.
What conduct justifies dismissal for breach of good faith?
Breach of contractual good faith and abuse of trust is one of the most common grounds for disciplinary dismissal, as it goes directly to the core element of loyalty that must exist in any employment relationship. The courts have upheld dismissals relating to:
- Misuse of IT or company resources for personal purposes during working hours.
- Misappropriation, diversion or improper use of confidential company information.
- Conscious and repeated breach of the organisation’s internal policies.
- Fraudulent or deceptive conduct for personal gain or on behalf of third parties.
- Carrying out activities incompatible with a period of temporary incapacity (sick leave), which amounts to a breach of contractual good faith by culpably delaying recovery, as analysed by the High Court of Justice (Roj: STSJ GAL 7537:2025 · ECLI: ES:TSJGAL:2025:7537).
However, loss of trust cannot rest solely on the employer’s subjective perception. There must be objective, serious and culpable conduct allowing the conclusion that the relationship of trust has been irretrievably broken.
Can a worker be dismissed for poor performance?
Yes, but it is particularly difficult to prove. It is not enough to claim that a worker performs below colleagues or falls short of management’s expectations. The employer must demonstrate objective elements such as:
- What performance targets applied, and whether they were realistic and achievable.
- What average performance was expected for that role.
- The worker’s actual, individual performance.
- Over what sustained period the drop in performance occurred.
- What objective comparison, against the worker’s own historical performance or that of colleagues in identical conditions, shows the difference.
It must also be shown that the drop in performance is voluntary and culpable. Courts tend to find dismissals unfair when they rest solely on general assessments of low productivity without objective, measurable data to verify the situation, as analysed in the High Court of Justice ruling (Roj: STSJ PV 3039:2025 · ECLI: ES:TSJPV:2025:3039).
Does every breach justify dismissal?
No. Even where the employer proves irregular conduct, the courts must assess whether the sanction applied is proportionate. Disciplinary dismissal is the most severe consequence available in employment law, and therefore requires a breach of sufficient seriousness. Proportionality is assessed taking into account factors such as:
- The objective seriousness of the conduct.
- Whether the conduct was repeated, or prior warnings existed.
- The financial or reputational harm caused to the company.
- The worker’s hierarchical position and level of responsibility.
- Any disciplinary record, or conversely, a long, unblemished service record.
The same conduct can have different consequences depending on context: a breach committed by someone in a managerial role, or with access to sensitive information, may be assessed as more serious, given the level of trust associated with the position.
What happens when a disciplinary dismissal reaches the courts?
When a worker challenges a disciplinary dismissal, it is for the employment tribunal to assess whether the employer has properly proven the alleged grounds. The outcome can be:
- Fair dismissal. If the employer proves a serious, culpable and proportionate breach, the dismissal is declared fair, terminating the employment relationship with no right to severance pay or back pay.
- Unfair dismissal. If the employer fails to sufficiently prove the facts, the sanction is disproportionate, or there are significant formal defects — such as the omission of the pre-dismissal hearing — the dismissal is declared unfair, requiring the employer to choose between reinstatement or payment of the statutory severance.
- Null and void dismissal. Where the dismissal breaches fundamental rights or is based on discriminatory grounds, it is declared null and void, requiring immediate reinstatement, payment of back pay, and potentially compensation for moral damages.
What role does HR play in preparing a disciplinary dismissal?
HR departments play a decisive role in managing these procedures, which require coordination between HR, management and legal advisers from the earliest stages of the dispute. Before communicating a disciplinary dismissal, it is essential to assess:
- Whether the facts are sufficiently supported by objective evidence.
- Whether the pre-dismissal hearing has been properly carried out.
- Whether the conduct precisely fits the legal ground invoked under the Workers’ Statute or the applicable collective agreement.
- Whether there are risks relating to fundamental rights (such as sick leave or family responsibilities).
- Whether the sanction is proportionate under the graduated-response doctrine.
Best practices for employers facing a potential disciplinary dismissal
Employers should avoid basing a dismissal decision solely on undocumented internal perceptions or assessments. Sound management requires identifying the facts, preserving evidence, applying consistent criteria, and ensuring the decision responds to a genuine cause.
It is also important that internal policies and codes of conduct are known to staff, and that the employer can prove the applicable rules were properly communicated. Applying different criteria to similar conduct can create proportionality problems, or even risks relating to equal treatment and discrimination.
Core legal takeaway
Disciplinary dismissal is a legitimate management tool, but its validity depends on sound legal construction. Courts do not only examine whether a breach occurred — they examine whether the employer was able to prove it with sufficient precision and justify that the sanction applied was appropriate.
A prior investigation, a well-drafted dismissal letter, and the availability of objective evidence are the essential elements for defending a business decision before the courts.
At Suárez de Vivero we advise national and international companies on disciplinary dismissals, employment litigation, internal investigations, workplace disputes and court defence before the employment tribunals.
Frequently asked questions about fair disciplinary dismissal
What is the pre-dismissal hearing and when must it take place?
It is the formal step by which, before making the final decision to dismiss, the employer must notify the worker in writing of the charges against them, so that the worker can submit representations and defend themselves. This step is mandatory for all disciplinary dismissals in Spain, following the doctrine established by the Supreme Court
Can an employer disciplinarily dismiss a worker who is on sick leave?
Yes. Being on temporary incapacity (sick leave) does not prevent a disciplinary dismissal where there is a serious and culpable contractual breach entirely unrelated to the illness. However, the employer bears a strict burden of proof to show the dismissal does not amount to discrimination on health grounds under Law 15/2022 of 12 July.
What happens if the conduct alleged in the dismissal letter has already time-barred?
Under Article 60.2 of the Workers’ Statute, very serious misconduct time-bars 60 days after the employer became aware of it and, in any event, 6 months after it occurred. If the employer notifies the dismissal after these deadlines, it will be declared unfair due to the time-barring of the offence, regardless of how serious the conduct was.
Is evidence obtained from the company’s CCTV footage valid?
Yes, provided staff were given prior notice about the installation of the cameras and their purpose of monitoring work, in accordance with Organic Law 3/2018 on Data Protection. The video surveillance measure must also pass the proportionality test: it must be suitable, necessary and balanced for verifying the breach.
