When a Peruvian employee receives a notice of charges, a clock starts. For the employee, it is the window to explain, deny, justify or mitigate. For the employer, it is the stage that tests whether the decision to dismiss is genuinely open or already made. Peruvian courts pay close attention to this phase because it is where the employee’s right of defense either becomes real or remains on paper.
International companies often underestimate this step. In systems where termination is primarily a commercial decision, the employee’s response to allegations is at most a matter of good HR practice. In Peru it is a legal condition for a valid dismissal based on conduct or capacity. This article explains what the right of defense requires, how to assess a response, and how to document that assessment so it holds up if challenged. For the full termination framework, see our guide to termination of employment in Peru.
Where the right comes from
The Constitution requires the law to protect employees against arbitrary dismissal (article 27). The Productivity and Competitiveness Law (the consolidated text of Legislative Decree 728, or LPCL) implements this protection procedurally in article 31: an employee cannot be dismissed for conduct or capacity without first receiving, in writing, a reasonable period to defend against the charges. That period must be at least six calendar days in misconduct cases and at least thirty calendar days in capacity cases. The only exception is flagrant serious misconduct where granting the period would be unreasonable.
Article 32 adds a structural safeguard: the employer cannot later invoke a cause different from the one stated in the dismissal letter. Read together, both provisions mean the dismissal must rest on charges the employee knew about and had the chance to answer. Article 37 then places the burden of proving the cause on the employer in court.
Key point
The right of defense is not satisfied by sending a letter and waiting six days. It requires charges specific enough to answer, time and information to prepare, and an employer that evaluates the answer before deciding.
The four components of a real defense
1. Knowing exactly what is alleged
The employee can only defend against facts that are described. A notice that alleges “serious breaches of company policy” without dates, transactions or conduct leaves nothing concrete to contest. How to draft charges properly is covered in the notice of charges before a dismissal in Peru.
2. Enough time
Six calendar days is the statutory floor. Complexity, volume of evidence, the employee’s health or a documented request for more time may make a longer period more reasonable. A short extension is a cheap way to neutralize an argument that the defense was rushed.
3. Reasonable access to the evidence
Peruvian law does not contain a detailed disclosure rule for internal procedures, but the employee cannot rebut evidence they do not know exists. As a preventive practice, the notice should identify the documents, reports, recordings or system logs relied on, and offer reasonable access. Personal data of whistleblowers and witnesses, and genuinely confidential business information, can be protected through redaction or supervised review.
4. An evaluation that actually happens
The response must be read and weighed. If the employee raises new facts (an authorization from a supervisor, a medical reason for an absence, a system error), the employer should verify them. If it rejects them, the reasons should be recorded. The dismissal letter need not reproduce a full judgment, but it should show that the defense was considered.
Assessing typical responses
Employees’ responses tend to follow recognizable patterns. The table below suggests how each should be handled.
| Response type | Employer’s next step | Risk if ignored |
|---|---|---|
| Denial of the facts | Recheck evidence; consider whether it is enough without the employee’s admission | Dismissal based on unproven facts |
| Justification (orders, authorization, emergency) | Interview the person said to have authorized; review records | Punishing conduct that was permitted |
| Procedural objection (vague charges, short period) | Consider reissuing a corrected notice | Procedural defect carried into court |
| Mitigation (length of service, clean record, personal situation) | Weigh proportionality; consider a lesser measure | Disproportionate sanction |
| Allegation of retaliation or discrimination | Escalate for legal review before deciding | Risk of a null dismissal and reinstatement |
| No response | Record the expiry and still assess the evidence | Appearance of an automatic decision |
When the response points to a lesser sanction, the employer should seriously consider it. Dismissal is the most severe measure in the disciplinary scale, and proportionality is part of what a judge will review. Our article on disciplinary measures in Peru explains the lighter alternatives.
Watch out
An allegation that the charges are retaliation for a complaint, union activity or a protected condition (pregnancy, disability, a cancer diagnosis) changes the risk profile. Under article 29 of the LPCL and Law 32431, a dismissal motivated by those reasons is null and the remedy is reinstatement.
Illustrative scenario
Illustrative scenario
Illustrative scenario: a technology services company in Lima, part of a US group, charges a senior developer with sharing source code with a former colleague now working at a competitor. The group’s security team in Texas holds the logs. The developer responds within six days, stating that the repository was a public open-source fork, that her manager had authorized collaboration with the former colleague on a joint client project, and requesting a copy of the logs.
The regional HR policy says “employee statements are noted for the record; decisions follow the investigation report.” Following it literally, local HR files the response and issues the dismissal letter the next day. That is exactly the kind of procedure that exposes the dismissal. The response raised two verifiable points: whether the code was confidential at all, and whether the manager authorized the contact. Neither was checked, and the request for the logs was not answered.
A defensible approach would verify the repository’s status, interview the manager, provide the relevant log extracts with third-party data redacted, and, if needed, extend the deadline for a supplementary response. If the facts are confirmed, the dismissal letter should address the authorization argument explicitly. Guidance on building this kind of record is in documenting workplace misconduct.
Paid release during the procedure
Article 31 allows the employer to release the employee from attending work during the procedure, provided that this does not impair the defense and the employee continues to be paid. This is often useful in fraud, harassment or information-security cases. Two practical points follow. First, the release should not cut the employee off from information they need to respond; if system access is suspended, the employer should provide the relevant records another way. Second, the release is not a sanction and should not be described as a suspension.
Language and cross-border reviewers
In foreign-owned companies, the response is often written in Spanish and reviewed by decision-makers abroad who read it through a machine translation or a short summary. Nuances of justification and mitigation are easily lost that way. As a professional recommendation, have the response reviewed in full by someone in Peru who can read it in the original, and attach a faithful translation to the decision file. Likewise, if the employee is not fluent in English, every communication in the procedure (extension decisions, evidence access, the dismissal letter) should be in Spanish. A defense that the employee could not fully understand is hard to present as a genuine opportunity to respond.
Checklist for handling the response phase
- Confirm the notice described specific facts and the statutory ground.
- Record the exact date of delivery and the response deadline.
- Answer requests for evidence or extensions in writing and promptly.
- Log the date the response was received and who reviewed it.
- Verify every factual assertion that could change the outcome.
- Consider proportionality and lesser sanctions before deciding on dismissal.
- Escalate allegations of retaliation or discrimination for legal review.
- Keep the time between response and decision short and explainable.
- Ensure the dismissal letter refers only to charged facts and reflects the evaluation.
Consequences of a hollow procedure
When the response phase is treated as a formality, the employer’s position deteriorates in several ways. The dismissal may be found to breach article 31, turning it into an unfair dismissal with statutory severance. If the facts relied on are shown to be false or the employee’s rebuttal was plainly ignored, the case may move toward the category of fraudulent dismissal described by the Constitutional Court in Exp. 976-2001-AA/TC (Llanos Huasco, 2003), where reinstatement is available. The broader catalogue of procedural failures is in mistakes that undermine a dismissal in Peru, and the substantive grounds are discussed in dismissal for serious misconduct.
Bottom line
The right of defense is the stage where a Peruvian disciplinary procedure proves its fairness. Employers that give specific charges, reasonable time, access to evidence and a documented evaluation rarely lose on procedure. Those that treat the response as a box to tick give the employee’s lawyer the easiest argument in the case. Our disciplinary procedures team can review responses and draft the decision so that the evaluation is visible on the record.