Termination of employment contracts: prior hearing for the affected employee and use of artificial intelligence systems

The Private Law Department of the University of Barcelona and Pérez-Llorca’s Employment, Compensation and Benefits practice held a session at the firm’s Barcelona office, where they discussed the need to provide a hearing before terminating employment contracts where the grounds relate to the employee’s conduct or performance. The speakers also considered the impact of artificial intelligence (AI) on employment relationships and, specifically, on the grounds for terminating an employment contract.

The seminar featured Joan Agustí Maragall, judge of the Labour Chamber of the High Court of Justice of the Balearic Islands; Pilar Rivas Vallejo, professor of Labour and Social Security Law at the University of Barcelona; and Manel Hernàndez, partner in Pérez-Llorca’s Employment, Compensation and Benefits practice.

The first topic discussed was the requirement to give employees a prior hearing in disciplinary dismissal cases, one of the potential measures that could arise from the investiture agreement between PSOE and Sumar (although it is not expressly set out in the agreement). Agustí noted that, although Spanish employment legislation does not provide for this requirement to apply fully to all employees, it is set out in Article 7 of International Labour Organization Convention No. 158, to which Spain is a party. Agustí, who directly applied that provision in a landmark ruling in which he was the reporting judge (judgment of 13 February 2023 of the Labour Chamber of the High Court of Justice of the Balearic Islands), recalled that “Article 7 of ILO Convention No. 158 is sufficiently clear and does not allow for its non-application to disciplinary dismissals.”

On this point, Hernàndez said that Article 7 of Convention No. 158 does not expressly state that it applies only to disciplinary dismissals, since it refers to the employee’s performance as well as conduct. Performance could also be relevant to some of the grounds for objective dismissal, such as subsequent incapacity or failure to adapt to technical changes in the workplace.

Agustí stressed that the provision may not have been applied previously because of an earlier Supreme Court ruling that appeared to take a different position. He called for legislative intervention to prevent legal uncertainty. Both the direct application of the Convention and the legal consequences of failing to observe it when a dismissal is challenged in court need to be resolved.