El derecho a la audiencia previa: herramienta equilibradora ante el despido disciplinario

Abstract

This article examines the judicial recognition of the right to a prior hearing as a fundamental procedural safeguard in cases of disciplinary dismissal, following the landmark ruling of the Spanish Supreme Court on 18 November 2024. Grounded in Article 7 of ILO Convention No. 158, this right is now considered directly applicable within Spanish labour law through the mechanism of conventionality control. It serves as a counterbalance to the employer’s disciplinary power by ensuring that workers are afforded an opportunity to defend themselves before termination. The absence of such a hearing renders the dismissal procedurally unfair, leading to its classification as unjustified, unless fundamental rights are infringed, in which case nullity may be declared. The Supreme Court has limited the temporal scope of this doctrine to dismissals occurring after the date of the ruling, prompting scholarly debate regarding legal certainty and constitutional coherence. The article advocates for legislative reform to enshrine the prior hearing as a statutory right, thereby reinforcing the principles of effective judicial protection and the guarantee of indemnity.