Until now the Supreme Court understood that the unjustified dismissal of an employee who was or had been in a situation of Temporary Disability (TD) did not entail per se the infringement of fundamental rights. Thus, in the absence of cause, the dismissal was declared unfair but not null and void. In order to deem such dismissal as discriminatory and, therefore, null and void, it was necessary that the employee suffered some type of disability or long-term limitation, proving that the real cause for the dismissal was this situation.
Will this doctrine be modified after the entry into force of Law 15/2022 of July 12th?
Three months ago, the Law 15/2022 for equal treatment and non-discrimination entered into force with the purpose to guarantee and promote the protection of the right to equal treatment and non-discrimination, and to respect the equal dignity of persons as stated in articles 9.2, 10 and 14 of the Spanish Constitution.
In this sense, Article 2.1 recognizes a set of circumstances and/or situations deserving of such protection and guarantee, adding “illness or health condition” as a discriminatory factor. Specifically, it establishes that “nobody can be discriminated against on grounds of birth, racial or ethnic origin, gender, religion, belief or opinion, age, disability, sexual orientation or identity, gender expression, illness or health condition, serological status and/or genetic predisposition to suffer from pathologies and disorders, language, socioeconomic situation or any other personal or social status or circumstance”.
To turn this guarantee effective, the aforementioned Law states the full nullity of those “provisions, acts or clauses of legal transactions that constitute or cause discrimination for any of the reasons set forth in the first paragraph of Article 2 of this law”.
Only those acts that can be objectively justified by a legitimate purpose through an appropriate, necessary and proportionate way will be deemed as “non-discriminatory” under Article 4.2.
Article 27 establishes the obligation to repair the damage caused due to the discriminatory act by providing indemnity and restoring the victim to the situation prior to the discriminatory incident, clarifying that, once the discrimination is proven, the existence of moral damage will be presumed.
Consequently, although we must wait for the practical application of these provisions by the courts, everything seems to indicate that companies may have difficulties in adopting the decision to terminate, without cause, the employment contract of an employee who is or has been on TD, because of the risk of the dismissal being declared null and void, with the consequent reinstatement of the employee and payment of damages which, according to law, seem to be automatically applied when a discriminatory act occurs.
Hence, the need to make such decisions based on objective reasons that dissociate the termination from discriminatory acts and prove that the dismissal responds to termination causes under the current legislation.
The information contained in this note should not in itself be considered as specific advice on the matter under discussion, but only as a first approach to the subject matter, and it is therefore advisable that the recipients of this note obtain professional advice on their specific case before taking specific measures or actions.