The notice of charges before a dismissal in Peru: content, timing and common errors

In most Peruvian dismissal disputes, the decisive document is not the dismissal letter. It is the letter that came before it: the notice of charges. Known locally as the carta de preaviso (pre-dismissal notice) or carta de imputación de cargos (letter of charges), it is the employer’s formal accusation. It fixes the facts under discussion, opens the employee’s right to respond and, once the procedure ends, limits what the employer can argue in court.

Companies that operate under at-will or notice-based systems tend to see this letter as an administrative formality. It is the opposite. A well-drafted notice can carry a dismissal through years of litigation; a careless one can sink a case built on excellent evidence. This article explains what the notice must contain, how the response period works, and the drafting errors that most often appear in international groups. For the broader context, see our guide to termination of employment in Peru.

Legal framework

Article 31 of the Productivity and Competitiveness Law (the consolidated text of Legislative Decree 728, or LPCL) states that an employee cannot be dismissed for reasons related to conduct or capacity without first being given, in writing, a reasonable period to defend against the charges:

• Misconduct: a period of no less than six calendar days.
• Lack of capacity: a period of no less than thirty calendar days to demonstrate capacity or correct the deficiency.
• Exception: flagrant serious misconduct where granting the period would not be reasonable.

During the procedure, the employer may release the employee from attending work, provided that this does not impair the right of defense and that the employee continues to receive pay. Article 32 then requires a written dismissal letter stating precisely the cause and the date of termination, and prevents the employer from later invoking a cause different from the one charged.

These rules sit on top of the substantive requirement of a just cause. The notice is the procedural vehicle for a ground that must already exist; our article on dismissal for serious misconduct covers the grounds themselves.

Anatomy of a defensible notice

Peruvian law does not prescribe a template. Courts, however, consistently look for the same ingredients. The table below summarizes them.

Facts, not labels

The most common weakness is describing conclusions instead of facts. “Loss of trust”, “unethical conduct” or “breach of the Code of Conduct” are labels. A defensible notice says, for example, that on specified dates the employee approved three purchase orders to a supplier owned by a family member, for identified amounts, without disclosing the conflict required by an internal rule the employee acknowledged on a given date. Each fact the employer intends to rely on should appear in the notice, because article 32 closes the door on new ones later.

One notice, several charges

If the investigation reveals several incidents, it is usually better to charge them all in the same notice, each described separately and linked to its statutory ground. This avoids piecemeal procedures and, in court, allows the dismissal to stand even if one charge is not proven. Our article on documenting workplace misconduct explains how to organize the file so that each charge has its supporting evidence.

Timing and immediacy

The notice must be sent within a reasonable time after the employer learns of the facts and completes its investigation. The LPCL treats unreasonable delay as condonation. This principle of immediacy (inmediatez) is where many international groups run into trouble: the investigation closes, but the notice waits for sign-off from a regional HR director, a legal team in another time zone and sometimes a global committee.

The same logic applies after the employee responds. A long silence between the response and the dismissal letter can suggest that the employer did not regard the misconduct as serious.

Illustrative scenario

Several problems overlap. The letter gives two days instead of six calendar days. It is framed as a termination already decided, which undermines the idea of a genuine opportunity to respond. It refers to a global standard rather than to specific facts and to the statutory ground (breach of approved safety rules, if serious). It is in English, addressed to a Spanish-speaking supervisor. And it is unclear whether the director has authority, under the Peruvian entity’s powers of attorney, to act as employer in disciplinary matters.

A corrected version, in Spanish and signed by a duly empowered representative, would describe what the supervisor did or failed to do during the incident, identify the safety rule and when he was trained on it, cite the relevant paragraph of article 25, reference the incident report, and give at least six calendar days to respond, with a paid release from attendance if the investigation requires it. The response should then be evaluated on its merits, as explained in the employee’s right of defense before dismissal.

Checklist before sending

• The investigation is complete enough to describe specific facts.
• Each fact is linked to a paragraph of LPCL article 25 (or article 23).
• The letter is in Spanish; any English version is a courtesy translation.
• The signatory has documented authority to represent the Peruvian employer.
• The response period is at least six calendar days (thirty for capacity) with an exact deadline.
• The letter states how and where the response can be delivered.
• Any paid release from attendance is expressly stated.
• Delivery will be documented: acknowledgment, witnesses or notary.
• The timeline from knowledge of the facts to the notice can be explained.
• Protected status has been checked: union officer, pregnancy, disability, recent complaint, serious illness.

Common drafting errors

• Wording the notice as a decision already made (“we have decided to terminate…”).
• Citing an internal policy but not the statutory ground.
• Leaving out facts that the company later wants to rely on.
• Counting the period in business days, or giving fewer than six days.
• Delivering on a Friday evening by email with no proof of receipt.
• Issuing a notice for conduct the company tolerated for months in other employees, which invites an argument of selective enforcement.

The litigation consequences of these errors are developed in mistakes that undermine a dismissal in Peru.

Consequences of a defective notice

If the notice is missing or defective, the dismissal may be found to have violated the procedure required by article 31. The employer then faces a claim for statutory severance or, under Constitutional Court case law, a claim for reinstatement where the dismissal is characterized as lacking a real cause or as fraudulent. The notice is also the first document a labor judge will read, and it shapes how the rest of the file is perceived.

Key takeaways

The notice of charges is where the employer commits to its case. It should be specific, in Spanish, timely, signed by the right person and delivered in a way that can be proven. International companies that treat it as a Peru-specific control, and not as a translation of a global template, avoid most procedural defeats. Our disciplinary procedures team drafts and reviews these notices, and can help local HR align them with group policies before the next case arises.