The rules of soccer are relatively stable, which allows us to understand and play the game. However, those rules can change if, in FIFA’s judgment, the sport needs to be streamlined, modernized, or updated to meet the demands of “the current times.” Indeed, we have seen this in the World Cup, as there are now rules that adapt to the sport’s new needs (for example, substituted players must leave the field within 10 seconds to speed up the game; or, there will now be a 5-second countdown for throw-ins, corner kicks, or goal kicks, so that delaying this action results in possession being handed over to the opponent). Well, something very similar occurs with the repeated rulings (case law) of our judicial authorities (specifically, the Second Chamber of the Supreme Court of Justice).
Labor case law had historically required that, in cases where an employee wished to terminate the employment relationship due to a breach of the employer’s obligations—while reserving the right to collect all benefits provided for under labor law (unilateral termination of the contract), they must first exhaust the avenue of dialogue within the company, as a demonstration of good faith aimed at correcting the employer’s breach and, consequently, maintaining the employment relationship. If the employer failed to correct the breach, then the worker could terminate the employment contract, thereby creating a situation of constructive dismissal.
However, a shift in this line of case law has recently emerged (Decisions 2421-2025 and 2026-001038 of the Second Chamber), under which it is now considered that, depending on the particularities of the case, it is not necessary to exhaust the avenue of dialogue before terminating the employment relationship.
In other words, case law now establishes the need to assess the specific circumstances of each instance of breach to determine whether or not it warrants giving the employer the opportunity to correct its conduct. As a distinguishing criterion, the rulings indicate that, in cases of particularly serious employer conduct that makes the continuation of the employment relationship impossible—such as workplace harassment, sexual harassment, degrading or humiliating treatment, violence, discrimination, or the violation of fundamental rights—the employee would be justified in terminating the employment relationship without the need to exhaust that prior “conciliatory conversation.”
In these cases, since the termination of the employment contract will be attributed to serious acts committed by the employer, it will be up to the employee to prove them, in order to determine whether or not termination for just cause is justified. If the courts find that the employee was not reasonably required to tolerate the employer’s breach, they would consider the termination of the contract immediately following such breach to be justified, without the employer having an opportunity to respond.
This change in case law has significant implications for both employees and employers, as:
- Employees will find it easier to terminate the employment contract while retaining the right to all statutory severance pay and benefits.
- Employers must objectively assess the reasons given by the employee when this occurs, as if they relate to serious breaches, they must be addressed with special diligence and as a priority.
- Companies must strengthen protocols and policies to prevent sexual harassment, workplace harassment, and discrimination; as well as procedures for complying with essential employer obligations (such as wage payment).
- Mechanisms must be strengthened to verify compliance with employers’ obligations regarding labor rights (payment of minimum wage, standard workday, occupational health and safety, non-discrimination in pay, among others).
In summary, this shift in case law implies that while the need to exhaust prior conciliation proceedings in the event of an employer’s breach remains important, it yields to the gravity of certain conduct. Therefore, the business sector must adopt a preventive approach as a strategy, for which it will be essential to implement effective regulations and mechanisms that protect the workplace, with reporting and investigation channels that prevent such breaches and their respective legal and economic consequences in the event that the employee’s termination of the employment relationship is deemed justified. Thus, just as with players participating in the World Cup, the rules of the game still apply, but they preclude actions that some currently consider contrary to fair play.