When disciplinary dismissal appears straightforward, but is not
Disciplinary dismissal occupies a particularly sensitive position in the labour management of companies. On paper, its logic may appear simple: serious and culpable conduct by an employee may justify the immediate termination of the employment contract. In practice, however, few areas are as exposed to nuance, evidentiary dispute and judicial review as this one.
A company may be fully convinced that the facts are sufficiently serious. It may have witnesses, images, internal communications or disciplinary reports. It may even rely on a collective bargaining agreement that expressly classifies a certain conduct as a very serious offence punishable by dismissal. And yet, once the matter reaches court, the business decision is subject to a broader analysis: how the facts were described in the dismissal letter, whether the sanction was proportionate, whether the conduct was sufficiently proven, whether there was repetition, whether real damage was caused, whether there were previous disciplinary records, whether the employee had the opportunity to respond to the allegations before termination, and whether the sanction chosen was the only reasonable one in light of the circumstances of the case.
That is why disciplinary dismissals are often more complex than they may initially appear. Not because the company lacks disciplinary powers, but because employment law requires those powers to be exercised with precision. Dismissal is the most severe sanction a company can impose within the employment relationship. It is therefore also the sanction subject to the strictest judicial scrutiny.
In recent years, that requirement has become even more demanding. Supreme Court Judgment 1250/2024, of 18 November, introduced an element that can no longer be ignored: before adopting a disciplinary dismissal, the company must offer the employee the possibility of responding to the allegations made against them, by direct application of Article 7 of ILO Convention No. 158. Although the Spanish Workers’ Statute does not contain an express general rule to this effect for all disciplinary dismissals, the Supreme Court has placed the prior hearing at the centre of the new formal standard.
That requirement must be added to a classic and well-established doctrine: the dismissal letter must describe the facts with sufficient clarity, without generic wording that prevents the employee from understanding the actual allegation; and the sanction must pass the proportionality test inherent in the so-called gradualist theory. The company must not only prove that something happened. It must explain what happened, why it is serious, why it justifies the maximum sanction and why a lesser disciplinary measure would not have been sufficient.
However, the gradualist theory does not reach everything. There are forms of conduct which, because of their intensity, the context in which they occur or the immediate breach of trust they cause, leave very little room for moderation. In those cases, the debate is no longer whether the company could have imposed a lesser sanction, but whether the employment relationship could reasonably continue after the facts.
The new architecture of disciplinary dismissal
For a long time, the discussion around disciplinary dismissal focused on two main areas: the formal sufficiency of the dismissal letter and the material seriousness of the conduct. The company had to communicate in writing the facts alleged and the effective date, complying with the requirements of Article 55 of the Spanish Workers’ Statute, and then prove that those facts amounted to a sufficiently serious disciplinary cause.
That framework remains in force, but it is no longer sufficient on its own. The doctrine derived from Supreme Court Judgment 1250/2024 requires the inclusion of a prior hearing or adversarial stage before the termination decision is adopted. The Supreme Court has considered Article 7 of ILO Convention No. 158 to be directly applicable. Under that provision, employment must not be terminated for reasons related to conduct or performance before the employee has been given an opportunity to respond to the allegations made, unless the employer cannot reasonably be expected to provide such opportunity.
The consequence for companies is clear: disciplinary dismissal should no longer be prepared merely as a final dismissal letter, but as a minimum procedure involving allegation, hearing and decision. This does not necessarily mean reproducing a complex adversarial file in every case, unless required by the collective bargaining agreement or by a specific condition of the employee. But it does require a real channel that allows the employee to know the alleged facts and submit representations before the company adopts the termination measure.
This requirement changes the way risk is managed. The company must take care with the internal investigation, preserve evidence, avoid rushed decisions, communicate the allegations with sufficient clarity and document that the employee had an effective opportunity to respond. If it does not, the dismissal may be compromised even before the substance of the conduct is examined.
Alongside this new guarantee, the traditional requirements remain. The dismissal letter cannot rely on vague expressions, indeterminate reproaches or generic references to breaches of good faith without narrating specific facts. This requirement, which could be described as a reaction against a “generalist theory”, is essential because the letter defines the subject matter of the proceedings. The company will not later be able to expand in court on facts that were not properly communicated at the time of dismissal.
And once the formal requirements have been met, the proportionality assessment begins. That is where the gradualist theory comes into play.
What the gradualist theory is and why it conditions so many dismissals
The gradualist theory responds to an idea of substantive justice: not every breach deserves the same sanction. Even if a legal provision or collective bargaining agreement allows certain conduct to be sanctioned with dismissal, the court may examine whether, in the specific case, that sanction is proportionate. Seriousness is not measured only by the label attached to the breach, but by its circumstances.
Case law has repeatedly insisted that there is no automatic rule. Each case must be assessed by reference to the conduct, the context, intent, repetition, damage caused, the employee’s position, the trust placed in them, previous disciplinary records, prior warnings, the impact on the organisation and the applicable collective bargaining agreement. The gradualist theory prevents dismissal from becoming a mechanical consequence.
This doctrine is particularly relevant in situations where there is room for interpretation: performance failures, isolated disobedience, lateness, operational errors, improper use of tools, verbal conflicts without particular intensity, debatable negligence or conduct which, although reproachable, may not have definitively broken business trust.
For the procedural defence of employees, the gradualist theory is a frequent and often effective argument. It allows the debate to shift from the existence of the facts to the appropriateness of the sanction. The employee may partially acknowledge what happened, while arguing that dismissal was excessive. They may rely on the absence of previous disciplinary records, provocation, workplace tension, lack of real damage, the limited seriousness of the breach or the existence of alternative disciplinary measures.
For the company, this uncertainty has a clear practical effect. Even when it considers that dismissal is justified, it must assess the risk that a court may find that the facts deserved a sanction, but not the maximum sanction. That risk explains why many disciplinary dismissals end in settlement before litigation or during the proceedings. The factual range is broad and predictability is never absolute.
But that same doctrine has a limit. Not every conduct admits graduation. Some behaviours immediately destroy trust, compromise safety, introduce violence or intimidation into the workplace or make the continuation of the employment relationship unreasonable. In those cases, the gradualist theory does not disappear as a legal category, but its margin narrows until there is practically no room left.
Contractual good faith as the boundary
The employment relationship is built on an exchange of obligations, but also on a foundation of trust. The company directs and organises; the employee provides services under certain rules of diligence, good faith and respect for workplace coexistence. When that foundation is broken, the disciplinary analysis changes in intensity.
A breach of contractual good faith is not limited to fraudulent or disloyal conduct in an economic sense. It may also appear in behaviours that make professional coexistence impossible, generate real fear in other people within the organisation or compromise safety in the working environment. The workplace is not only a productive space. It is a space of relationship, hierarchy, coordination and mutual protection.
In that context, verbal or physical offences, threats, intimidating behaviour and situations of violence are assessed particularly severely. The company has an obligation to protect its staff, preserve a safe working environment and react to conduct that exceeds ordinary conflict. Not every verbal confrontation justifies a fair dismissal, but not every absence of physical aggression allows the sanction to be softened.
The boundary is usually found in the intensity of the conduct and the effect it produces. An argument may be sanctionable, but not necessarily justify termination. A credible threat in a tense context, especially when made while holding a dangerous instrument, may place the case in another category. Where there is real fear, intimidation and a breakdown of minimum standards of workplace coexistence, proportionality no longer operates in the same way.
The gradualist theory allows for balancing. It does not allow the intolerable to be normalised.
The knife case: when context turns a gesture into a threat
The recent ruling giving rise to this article —Judgment of the High Court of Justice of Catalonia of 13 April 2026, appeal 5535/2025— offers a particularly illustrative example of the limits of the gradualist theory. The case arose in a meat-processing company, an environment in which the use of knives forms part of ordinary activity and where, at the end of the working day, employees sharpen their tools using a machine designed for that purpose.
That fact is important because, at first glance, it could appear favourable to the employee. The knife was not an unusual object brought into the workplace for the purpose of intimidation. It was their normal work tool. However, the judicial analysis does not stop at the ordinary nature of the instrument, but at the way in which it became part of the incident.
According to the facts described, while several employees were sharpening their knives at the end of the working day, the supervisor came over and restarted the machine with his key, causing those using the equipment to stop momentarily.
The interruption upset one of the employees, Mr Vidal, who confronted the supervisor while holding the knife in his hand. In the video submitted in the proceedings, both individuals could be seen gesturing with their arms. In addition, the employee allegedly told the supervisor that he would wait for him in the car park and would smash his face in.
The supervisor stated that he felt afraid. According to the account, on the advice of security staff, he waited a prudent amount of time before going to the car park to leave the premises. One further element should also be highlighted: it was the first day on which Mr Vidal and the supervisor had met. They had never previously worked together. There was no prior relationship that could contextualise the episode within an existing dynamic of trust, familiarity or accumulated conflict.
After being dismissed for verbal or physical offences, the employee challenged the business decision and requested, among other arguments, the application of the gradualist theory. His defence reportedly argued that the knife was an ordinary work tool and that no physical aggression had taken place. Other elements could also have operated from a classic gradualist perspective: the absence of previous disciplinary records, the isolated nature of the incident, the anger caused by an interruption at the end of the working day or the absence of actual physical harm.
However, the court upheld the fairness of the dismissal. The central reason was not only the words spoken, nor only the verbal confrontation, nor only the gesturing. It was the combination of all those elements in a context in which the employee had a knife in his hand and generated real fear in the supervisor. That detail moves the case away from an ordinary verbal conflict and places it in the field of intimidation, incompatible with the continuation of the employment relationship.
Why the absence of physical aggression does not always save the dismissal
One of the usual arguments in the defence of disciplinary dismissals for altercations or threats is the absence of physical aggression. The employee may argue that they did not strike anyone, did not cause injuries, that the conflict remained verbal, that the instrument in their hand was part of their work or that the episode was the result of a moment of tension. In many cases, these elements may be relevant when assessing the degree of sanction.
But they are not decisive in themselves.
Employment law does not require violence to be physically consummated for conduct to be disciplinarily serious. A threat, intimidation or the creation of fear in the workplace may be sufficient when it reaches a sufficient level of seriousness. The company does not have to wait for an assault to occur before acting. Its duty of protection operates before the damage becomes irreversible.
In the case analysed, the absence of physical aggression does not neutralise the seriousness of the episode because the assessment does not focus on the injurious result, but on the conduct and the risk it projects. A threat made in a context of confrontation, while holding a knife and expressly referring to waiting for the supervisor in the car park, cannot be assessed as a mere verbal excess without consequences. The car park, moreover, is not a neutral place in this account: it appears as a promise that the conflict would continue outside the immediate working space, away from the ordinary control of the activity.
The supervisor’s reaction also matters. Fear is not presumed automatically, but when it is plausible and connected to objective facts —the instrument in the hand, the verbal threat, the need to wait before leaving the premises— it reinforces the assessment of seriousness. This is not about turning any subjective discomfort into grounds for dismissal, but about recognising that some conduct genuinely alters psychological and physical safety in the workplace.
The gradualist theory may weigh anger, the absence of previous disciplinary records or the absence of injury. But when the conduct introduces a serious threat into the workplace, those factors may be insufficient to moderate the sanction.
The business value of a solid disciplinary response
For companies, this type of case offers a lesson that goes beyond the specific facts. The fairness of the dismissal does not depend only on the seriousness of the conduct. It also depends on how the company manages its response.
The company must act quickly, but not hastily. It must preserve evidence, identify witnesses, collect images where available, document the perception of the people affected, assess the applicable collective bargaining agreement, offer the employee a prior hearing and draft a dismissal letter that describes the facts precisely, without unnecessary exaggeration and without relevant omissions.
In cases involving threats or intimidating behaviour, the dismissal letter must reconstruct the context. It is not enough to state that the employee “threatened” or “showed disrespect”. It must indicate what happened, when, where, before whom, what expressions were used, what instrument or contextual element increased the seriousness, how the affected person reacted and why the company considers that contractual good faith was broken. Precision is not a formality. It is the condition that allows the court to assess the conduct in its full dimension.
It is also important that the company does not rely exclusively on the wording of the collective bargaining agreement. The fact that conduct is classified as a very serious offence helps, but it does not replace the proportionality assessment. The letter should anticipate, as far as possible, the gradualist arguments that the defence is likely to use: absence of previous disciplinary records, isolated nature of the incident, provocation, end of the working day, momentary tension, lack of physical aggression or the normal nature of the work instrument. If the company can explain why, despite those elements, the continuation of the employment relationship was unviable, its procedural position will be stronger.
A disciplinary dismissal is not won only in court. It begins to be won —or lost— in the investigation, the prior hearing and the dismissal letter.
Where the gradualist theory finds its limit
The gradualist theory is a safeguard against automatic dismissals. It prevents the company from using the maximum sanction without assessing the circumstances of the case. It requires a distinction between a serious breach and a breach which, although reproachable, admits a lesser response. In that sense, it fulfils an essential function within the labour balance.
But it cannot become a formula for neutralising any conduct. If everything can be graduated until dismissal becomes unfair, even conduct that immediately breaks trust and compromises safety, the company’s disciplinary power would be emptied precisely in the situations where it is most necessary.
Some behaviours cannot be explained solely by anger. Some threats cannot be reduced to verbal excess. There are contexts in which the presence of a dangerous tool transforms the perception of the facts. And there are situations in which the absence of previous disciplinary records does not compensate for the intensity of a single but sufficiently serious act.
The case analysed reflects precisely that boundary. Mr Vidal was not dismissed for carrying a knife in his hand in a meat-processing company. He was dismissed because, in a confrontation with a supervisor, while holding the knife, he allegedly made a threat that generated real fear and forced the affected person to alter his exit from the workplace. The ordinary work tool became, because of the context, an element that aggravated the intimidation.
Graduality does not disappear, but it is overcome by the breach of trust. And when trust is broken in that way, the continuation of the employment relationship is no longer reasonably enforceable.
Proportionality does not mean indulgence
Disciplinary dismissal requires rigour. It requires a prior hearing, a precise letter, sufficient evidence and proportionality. It requires the company not to act out of mere emotional reaction or from the convenience of a collective bargaining provision classifying conduct as very serious. But it also requires recognising that there are limits in workplace coexistence which, once crossed, do not allow the relationship to be rebuilt on the basis of a lesser sanction.
The gradualist theory is a tool for balancing, not a route to impunity. Its function is to prevent disproportionate dismissals, not to protect conduct that introduces intimidation, fear or a severe breach of contractual good faith into the workplace. The company must demonstrate why the maximum sanction was necessary. But when the facts reveal a serious threat and a real breach of trust, the absence of previous disciplinary records or the absence of physical aggression may not be sufficient to displace the fairness of the dismissal.
For companies, the lesson is twofold. The first is that disciplinary dismissals must be prepared to an increasingly demanding formal standard. The second is that the gradualist theory has limits when the conduct makes the continuation of the employment relationship unviable. In those cases, the key is not only to sanction, but to build a disciplinary decision that is legally defensible from the outset.
At Suárez de Vivero, we advise companies, international groups and HR departments on the management of disciplinary procedures, labour risk audits, preparation of dismissal letters, internal protocols and judicial defence of complex business decisions.
Frequently asked questions on disciplinary dismissal and the gradualist theory
What is the gradualist theory in disciplinary dismissal?
The gradualist theory is a case-law doctrine that requires the specific circumstances of each case to be assessed before confirming the fairness of a disciplinary dismissal. Even where conduct may be classified as a very serious offence under the law or a collective bargaining agreement, the court may examine whether dismissal is proportionate, taking into account factors such as repetition, damage caused, intent, previous disciplinary records, context and the actual seriousness of the breach.
Can a dismissal be unfair even if there is a very serious offence?
Yes. The classification of conduct as a very serious offence under a collective bargaining agreement does not automatically guarantee the fairness of the dismissal. The court may consider that the facts existed and deserved a sanction, but that termination of the contract was disproportionate. For that reason, the company must justify not only the existence of the breach, but also why the maximum sanction was appropriate in the specific case.
When does the gradualist theory not apply?
Rather than not applying, the gradualist theory may have no real margin when the conduct is so serious that it immediately breaks contractual good faith or makes the continuation of the employment relationship unviable. This may occur in cases of serious threats, violence, intimidation, fraud, intense disloyalty, harassment or conduct that compromises the safety of other people in the workplace.
Does the absence of previous disciplinary records prevent a dismissal from being declared fair?
Not necessarily. The absence of previous disciplinary records may be a relevant element in assessing proportionality, but it does not, in itself, prevent a dismissal from being fair where the isolated conduct is sufficiently serious. There are single breaches which, because of their intensity or the breach of trust they generate, may justify disciplinary termination.
Is physical aggression necessary to justify dismissal for threats?
No. Physical aggression is not essential if the threat or intimidating conduct reaches a sufficient level of seriousness. A serious, contextualised threat capable of generating real fear may justify the fairness of the dismissal, especially where it affects safety, coexistence or authority within the workplace.
Why is the dismissal letter important?
The dismissal letter is essential because it defines the facts that may be discussed in court. It must clearly describe what happened, when, where, who was involved, what expressions were used and why the company considers that the conduct justifies dismissal. Generic or insufficiently detailed letters may lead to a finding of unfair dismissal, even where the facts are disciplinarily relevant.
Must the company give a prior hearing before carrying out a disciplinary dismissal?
Yes. Under the doctrine established by Supreme Court Judgment 1250/2024, of 18 November, the company must offer the employee the possibility of responding to the allegations made before adopting the disciplinary dismissal, by direct application of Article 7 of ILO Convention No. 158. The specific form of that step may depend on the case, the collective bargaining agreement and company practice, but there must be a genuine opportunity to respond.
What should a company do before carrying out a disciplinary dismissal?
It should investigate the facts, preserve evidence, review the applicable collective bargaining agreement, offer a prior hearing, assess the proportionality of the sanction and draft a precise dismissal letter. In particularly serious conduct, such as threats, violence or breach of good faith, it is essential to document the context, the perception of the people affected and the reasons why the continuation of the employment relationship is unviable.
