The Universitat de Barcelona’s Private Law Department and Pérez-Llorca’s Employment, Compensation and Benefits practice area organised a session at the law firm’s Barcelona headquarters to analyse the need to grant a hearing in the termination of employment contracts when the cause lies in the employee’s behaviour or performance. During the conference, the speakers also assessed the impact of Artificial Intelligence (AI) on the framework of employment relationships and, in particular, on the justification of contract termination.
The seminar was attended by Joan Agustí Maragall, Judge of the Labour Division of the High Court of the Balearic Islands; Pilar Rivas Vallejo, Professor of Employment Law and Social Security at the Universitat de Barcelona; and Manel Hernàndez, Employment, Compensation and Benefits partner at Pérez-Llorca.
The first point of discussion at the event was the requirement for a preliminary hearing for workers in cases of disciplinary dismissal, one of the potential measures that could emanate from the investiture agreement between PSOE and Sumar (although it is not expressly set out). Agustí pointed out that, although the full application of this requirement to all workers is not included in Spanish labour legislation, it is contained in Article 7 of Convention No. 158 of the International Labour Organisation, to which Spain is a party. Agustí, who in a pioneering decision for which he was a reporting judge (Judgment of 13 February 2023 of the Labour Division of the High Court of the Balearic Islands) applied the aforementioned precept directly, recalled that “Article 7 of ILO Convention 158 is sufficiently clear and does not leave room for inapplicability to disciplinary dismissals.”.
In this respect, Hernàndez pointed out that the scope of Article 7 of Convention 158 does not explicitly indicate that it can only be used in the case of disciplinary dismissals, since it refers to the worker’s performance as a reason, in addition to conduct, and the former could be related to one of the causes envisaged for objective dismissals, such as supervening ineptitude or failure to adapt to technical modifications made to the job.
Agustí insisted that this rule may not have been applied previously, due to the existence of a previous Supreme Court ruling that apparently went in a different direction. He called for the legislator to intervene in order to avoid situations of legal uncertainty. Both the direct application of the Convention and the legal consequences that non-observance of the Convention may have on the classification of a dismissal that is the subject of the proceedings must be resolved.
Rivas went on to examine the search for a requirement for a preliminary hearing for workers contained in the various regulations governing AI. These rules would come into play when the decision to terminate an employee’s contract is taken by means of an automated AI process (Convention 108+ and the General Data Protection Regulation, both of which provide that the decision must be preceded by a hearing with the subject). On this point, Rivas assessed the impact of the proposals that will change this issue when they enter into force: the ‘Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence’ and the ‘Directive of the European Parliament and of the Council on improving working conditions in platform work’, as both also mention a requirement for human intervention before taking business decisions with significant effects on workers, such as in the case of a dismissal.
Lastly, Hernàndez reviewed some of the initiatives to reform employment regulations that form part of the Coalition Government’s programme, such as the reform of the Substantial Modifications to Working Conditions, the reduction of the working day to thirty-seven and a half hours, and the increase in the Minimum Interprofessional Wage (SMI), and highlighted that some of the proposed reforms (such as those relating to the drafting of the Workers’ Statute or the Law on the Use of Time, among others), expressly include references to the use of algorithms and artificial intelligence.