Can I dismiss a sick or temporarily incapacitated worker?

On 12 July, Law 15/2022 on equal treatment and non-discrimination was published and entered into force on 14 July 2022.

The purpose of this law is to guarantee and promote the right to equal treatment and non-discrimination and to respect the equal dignity of persons in development of articles 9.2, 10 and 14 of the Spanish Constitution. To this end, the law regulates the rights and obligations of individuals, natural or legal, public or private, and establishes principles for action by the public authorities, establishing measures aimed at preventing, eliminating and correcting all forms of direct or indirect discrimination in the public and private sectors.

Among other provisions, focusing on the labour sphere, the law establishes that “No one may be discriminated against on the grounds of birth, racial or ethnic origin, sex, religion, conviction or opinion, age, disability, sexual orientation or identity, gender expression, illness or health condition, serological status and/or genetic predisposition to suffer pathologies and disorders, language, socio-economic situation, or any other personal or social condition or circumstance”. In turn, it establishes that “The illness may not cover differences in treatment other than those deriving from the treatment process itself, from the objective limitations it imposes on the exercise of certain activities or those required for reasons of public health”.

So, can a worker who is ill or on sick leave due to temporary incapacity be unjustifiably dismissed?

It should be made clear at the outset that when we say “unjustifiably” we are referring to the total absence of any objective or disciplinary cause.

In light of the new regulation, it seems clear that (unless there is a better criteria) if the company is not able to justify the termination decision objectively, there is a high risk of nullity of the dismissal. It is important to highlight that, in addition to compensation for moral damages and damages caused, it implies the obligation to reinstate the victim to the situation prior to the discriminatory incident, and she must be reinstated in her job (with the consequent payment of wages for processing).

Therefore, although we must wait for the practical application of this new Law by the Courts, we would like to point out that, now with regulatory support since the publication of the aforementioned law, although we have been insisting on it from this Office, the termination of the contract without just cause of a worker on medical leave, although the company intends to recognise the unfairness of the dismissal, will encounter a major obstacle if the dismissed worker does not accept such termination.

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