The Supreme Court has confirmed the nullity of a 60-day suspension of employment and salary for violating the formal requirements of article 58.2 ET, by not setting an objective date for its compliance.

This ruling resolves the appeal for the unification of doctrinefiled against the ruling of March 20, 2023, issued by the Social Chamber of the Superior Court of Justice of Catalonia, in the appeal no. workers.

The case concerns a clinic worker who, on November 30, 2020, was notified of the initiation of a disciplinary file. On November 2, the company had provisionally assigned him a day shift for 15 days. The next day, the occupational health service informed superiors that the worker was considered a person sensitive to the risk of exposure to the SARS-COVID-2 virus, although, in reality, he was not going to be in contact with COVID patients.

On November 4, 2020, the worker did not show up for the assigned shift, and the next day he submitted a medical leave with retroactive effect from the same day the 4th. He was on medical leave until November 8, although he presented the discharge report to the company on November 9.

On January 7, 2021, the company notified the worker of a sanction of 60 days of suspension of employment and salary, for violation of contractual good faith and abuse of trust. However, the communication did not establish when compliance with the sanction began.The worker challenged the sanction, alleging its nullity due to lack of specification of the effective date.. The letter indicated that it would be carried out “whenever the management so determines.”

The Social Court dismissed the claim, proving the company right. However, the Superior Court of Justice of Catalonia upheld the appeal, revoked the lower court ruling and declared the disciplinary sanction null and void, for not complying with the formal requirements required by law, by leaving the setting of its effective date to the business discretion.The worker alleged violation of article 58.2 of the Workers' Statute and the jurisprudential doctrine established by the Supreme Court ruling of September 15, 1988.The company in demand, attempted to introduce a new fact stating that on June 9, 2021, the worker was informed that “ The sanction would become effective when the resolution of this procedure became final in the event that its origin was confirmed.", but the factual review was not considered .

Does postponing a sanction without justification violate the Workers' Statute?

The company filed an appeal for the unification of doctrine, alleging contradiction with the ruling handed down by the Superior Court of Justice of Andalusia, dated March 14, 2012 (appeal no. 1669/2010), in a similar case where it was not considered necessary to establish the effective date of the sanction.

The Public Prosecutor's Office issued a report in which it proposed the dismissal of the appeal considering that the appealed sentence followed the doctrine of the STS of September 15, 1988.

The TS appreciates a contradiction between the compared sentences: both involve 60-day sanctions without a specific date of compliance, but with opposite legal criteria regarding the need to set it. Consequently, it is necessary to unify doctrine.

What is the issue debated?

The issue to be resolved consisted of determining whether the disciplinary sanction of suspension of employment and salary for 60 days is void when its date of application is at the exclusive discretion of the company, without a specific date being determined at the time of its notification.

What does the Supreme Court say about sanctions that depend only on business will?

The Supreme Court recalled that article 58.2 of the ET requires that the disciplinary sanction be communicated in writing, stating the date and the facts that motivated it. Interpret that the expression “date” is the effective date. This requirement is not a mere formality, but a fundamental guarantee of the worker's right to defense.

Furthermore, article 115.1.d) of the Law Regulating Social Jurisdiction (LRJS) establishes that a sanction will be void if it is imposed without respecting the formal requirements, or if they present defects of such severity that they prevent the fulfillment of their purpose.

The jurisprudence of the Supreme Court, especially the ruling of September 15, 1988 and the most recent STS 737/2024, of May 28, compliance with the disciplinary sanction was proposed until it became final. The Supreme Court reiterates doctrine and reasons that one thing is that a sanction can be postponed to a specific and certain fact, such as the passage of the legal period for its challenge or the finality of the sanctioning resolution, which does not depend on the business will, and another thing is that it remains pending at the mere discretion of the business. The important thing is that this moment is objective, verifiable and known by both parties.

When is a suspension of employment and salary void under Article 58?

The Supreme Court rules and considers that when the compliance date is left to the exclusive decision of the company, without establishing it specifically at the time of communication, the sanction is null due to formal defect. This practice violates the principle of good faith and the balance between the parties, and cannot be validated by subsequent communication, especially if it is not documented.

In this case, the date of compliance with the sanction was left to the sole discretion of the company, without establishing a specific objective or temporal criterion. This way of proceeding, It constitutes a serious formal defect, which deprives the worker of legal security, as the sanction can be executed at any time, without foresight or control.

The company's attempt to justify this omission with a subsequent communication was not accepted, since it was not documented or incorporated as a proven fact in the case.

What was the mistake?

The Supreme Court rejected the appeal for unification of doctrine filed by the company, confirmed and declared final the ruling of the TSJ of Catalonia, which had declared the nullity of the disciplinary sanction.