Dismissal due to supervening inaptitude

As all our readers are surely aware, the Workers' Statute establishes a series of objective causes that justify and facilitate the termination of an employment contract by unilateral decision of the employer. When one of them is mentioned, it is possible to dismiss the employee with a severance payment of less than the maximum amount, which is 33 days' salary per year of service. Undoubtedly, one of the ones that generates most doubts among workers is that of ‘supervening ineptitude’. For this reason, here we would like to explain what it consists of.

What is a dismissal due to supervening inaptitude?

First of all, we must define what supervening ineptitude is. This concept refers to the loss of capacity or ability on the part of the employee to carry out the tasks inherent to his or her position efficiently. In other words, at the time of being hired by the company, the employee did possess these skills, but has lost them due to various circumstances.

Any employer can allege supervening ineptitude in the letter of dismissal and terminate the employment relationship on that basis. However, two requirements must be met:

• Demonstrate that the supervening ineptitude really exists: to do so, it is necessary to provide evidence of the worker's inability to perform the tasks entrusted to him/her.
• Proving that relocation is impossible: in other words, that there is no other job within the company's organisation chart that could be adapted to the employee's current abilities.

Obviously, the dismissal must be communicated in writing with sufficient notice. Generally, 15 calendar days before the end date of the contract. It must clearly state the reasons for the dismissal, the amount of the severance payment and the amount of compensation due to the employee (in this case, 20 days' salary per year of service with a maximum of 12 monthly payments). Of course, the employee has the right to challenge the dismissal in court if he/she does not believe it to be fair or legal.

Examples of dismissal due to unfitness to work

In the vast majority of cases, dismissal for supervening unsuitability is for one of the following two reasons:

The first is the worker's inability to adapt to the technological changes associated with his or her job.

For example, we can imagine a worker who is employed in a factory and who has been performing his tasks manually for 20 years. When the business decides to buy machines capable of carrying out his functions, he is unable to adapt to their control because he lacks the necessary training.

The other reason for this type of dismissal is often the physical or mental deterioration of the worker. This would be the case, for example, of a worker who suffers an occupational accident and who, when he is discharged, has lost the motor skills that made him fit for employment. In this case, it would be possible to dismiss for supervening incapacity.

If the same problem arises due to an illness, whether occupational or common, we would speak of supervening incapacity due to illness. In any case, the result in practical terms would be the same when it comes to dismissal.

Is it possible to challenge a dismissal on the grounds of supervening unfitness?

Yes, of course. If the employee does not agree with the employer's decision, he/she has the possibility to file a conciliation petition with the Mediation, Arbitration and Conciliation Service (SMAC) within 20 working days from the date on which the dismissal became effective. If the two parties do not reach an agreement, judicial proceedings will be initiated, which will result in a final judgement.

This judicial process can result in three situations:

• The judge declares the dismissal to be fair, i.e. the company is right and the dismissal becomes definitively effective under the conditions set out in the letter.
• The judge declares the dismissal unfair and, therefore, the employer is obliged to pay the former employee a severance payment of 33 days' salary per year of service with a maximum amount of 24 monthly payments.
• The judge declares the dismissal null and void for having violated a fundamental right of the employee. In this case, the employer is obliged to reinstate the employee in his or her position.

The employer's point of view

It follows from the above that dismissal for supervening unfitness is a right of employers, who are not obliged to pay wages to a person who is unable to perform his or her duties. However, proving that the situation is real is not easy. Therefore, before doing so, it is necessary to carry out a thorough assessment of the situation, to look for alternatives and to gather all the documentation to prove that there is a problem.

The employee's point of view

For their part, employees must be fully aware of their rights and have all the documents that prove that, in reality, there is no supervening ineptitude on their part or, failing that, that the employer has not provided them with the necessary opportunities to readapt to their position or to occupy another position within the business.

In any case, the advice of a lawyer specialising in dismissals is essential for the worker to be able to defend their rights and obtain the result that best suits their interests in the event that the dismissal due to supervening ineptitude materialises. In more than a few cases, the challenge results in a ruling of unfair dismissal or null and void dismissal.