How to appeal a disciplinary sanction at work

The Workers' Statute and the various collective agreements governing each professional sector provide for the imposition of disciplinary sanctions by companies on workers who commit certain types of offences in the performance of their duties. However, not all of these sanctions are legitimate, as they can sometimes be considered abusive, disproportionate or not in line with regulations. For this reason, we would like to explain how to appeal a serious offence at work.

But what is a disciplinary sanction?

A disciplinary sanction is one or more measures imposed by the company on an employee when it considers that they have committed an offence. Examples include an employee who is repeatedly late for work or who is caught red-handed using company equipment for personal purposes.

These disciplinary sanctions must be provided for in the Workers' Statute or in the applicable collective agreement. Obviously, not all of them are equally serious or have the same consequences. For this reason, they are divided into three categories:

• Minor: this would include verbal or written reprimands and warnings. A kind of workplace warning that, in most cases, has no effect on the employee's salary or working hours. However, if they accumulate, they can lead to short-term suspensions from work and pay.
• Serious: these are sanctions that may result in a reduction in employment benefits, loss of incentives or bonuses, and prolonged suspensions from work and pay. They could be imposed, for example, if an employee is absent from work without just cause.
• Very serious: these are offences that may result in the disciplinary dismissal of the employee. Examples include disrespectful behaviour towards colleagues, especially if it involves discriminatory treatment, or the theft of cash or company property.

That said, it is important to note that a distinction must be made between disciplinary sanctions and disciplinary dismissal. While it is true that disciplinary dismissal must be the result of very serious offences, it terminates the employment relationship. However, the purpose of sanctions is to impose corrective measures that do not affect the continuity of the contract.

Can a disciplinary measure be unfair?

Of course it can. For this to be the case, it must meet one or more of the following requirements:

• Disproportionate: that is, the measures are excessive considering the seriousness of the offence. For example, it would be disproportionate to impose three days without work or pay on an employee for arriving 10 minutes late one day.
• Lack of evidence: the company is obliged to prove that the employee has committed the offence if it wishes to impose a disciplinary measure.
• Violation of fundamental rights: an employee cannot be penalised for going on strike or exercising their trade union rights, for example.

In addition, the company may fail to follow the proper procedure when imposing the penalty or may initiate it after the statute of limitations has expired. In both cases, the penalty cannot be enforced. And if it is, the employee can appeal it.

How can you defend yourself against a disciplinary action at work?

The company is obliged to notify you of the disciplinary action in writing, which does not mean that they cannot warn you verbally. However, if they only use words, they cannot impose effective measures on you.

The document they give you must state the allegations against you, the date on which the alleged offence occurred and the regulations on which the disciplinary action is based. Obviously, it must also state what measures are being taken. If any of this information is missing, the disciplinary action may be overturned on procedural grounds.

Our advice is that, once you receive the letter, you consult the Workers' Statute or the current labour agreement in your company to ensure that the penalty imposed is in line with the offence you are accused of. If you decide to sign it, add ‘not in agreement’ if you disagree. Then, you must follow a series of steps, which we will look at below.

How to respond to a written disciplinary warning?

Submitting your defence Once you receive notification of the sanction, it is advisable to submit any defence you deem appropriate. The document must clearly state why you consider the sanction to be unfair. It is also a good idea to try to resolve the conflict by mutual agreement without having to take further steps.

Challenging a disciplinary sanction before the SMAC

If you have submitted your arguments and have not received the response you expected, the next step is to submit a conciliation form to the Mediation, Arbitration and Conciliation Service (SMAC) closest to your place of residence.

As with the submission of arguments, the aim of the conciliation form is for both parties to reach an agreement without having to go to court. Although you are not obliged to hire a solicitor specialising in labour law, it is highly recommended that you do so. The company will certainly use this resource immediately.

Filing a claim

The next step in the process of appealing a company sanction is to file a claim with the Labour Court. To do so, it is very important to remember that you have 20 working days from the date on which you were notified of the sanction. This action will mean that a judge will review the sanction and determine whether it is valid or should be overturned.

What happens next?

At this point, the judge will choose one of the following three options in their ruling:

• Annul the penalty: to do so, the judge must determine that it is unfair for any of the reasons outlined above. In other words, the penalty will be rendered null and void. For example, if it involved a suspension of employment and salary, the company will have to reimburse the wages that the worker did not receive, even if they did not go to work on those days.
• Modification of the sanction: if the facts existed and the company complied with the legal procedures, but the measures taken were excessive, the judge may correct them, reduce their severity and compensate the worker.
• Ratification of the sanction: the judge will rule in favour of the company and the sanction will be applied as it was imposed.

In any of the three cases, especially if the judge does not rule in favour of the company, it is possible that the company will continue to unjustifiably penalise the worker in retaliation for their action. This is considered abusive behaviour on the part of the employer.

In this case, the employee has the option of reporting the company to the Labour and Social Security Inspectorate. They can also seek protection from the courts if they believe that their fundamental rights have been violated and even report the company for workplace harassment, if applicable.

Without a doubt, receiving a disciplinary measure at work is not pleasant for any employee. Fortunately, if you consider it to be unfair, you have many options for reversing it. This is especially true if you have the services of a specialist lawyer who can defend your rights and advise you on what you need.