Dismissal during medical leave is considered null and void.

One of the main fears that workers feel is being dismissed due to illness and being in the middle of a period of medical leave. Although it is more complicated to find examples of such cases, the truth is that this thought is floating around in many people's heads, as it is a case covered by Spanish labour legislation. Until now.

Last February, the Court of Justice of the European Union, as it did in the case of temporary workers, forced a Catalan Social Court in the city of Barcelona to consider as null and void a dismissal that occurred during a period of temporary incapacity, i.e. during a worker's medical leave. This will be the rule from now on, as the ruling establishes case law and sets a precedent. If this had not happened, the dismissal would have been considered null and void.

Differences between unfair dismissal and null dismissal

Many people tend to confuse the concepts of unfair dismissal and null dismissal when, in fact, they have nothing to do with each other. In fact, they are radically different, which is why it is important to define what each one consists of and what the differences are.

Unfair dismissal and null dismissal

To give you an idea, an unfair dismissal is one in which the employer unilaterally terminates the contract with an employee without there being grounds for doing so, which are set out in the law. It is also considered unfair if the decision lacks the minimum requirements of labour legislation.

On the other hand, any dismissal must be considered null and void if it has been carried out in violation of public liberties and/or fundamental rights of the worker that are protected in our Constitution or in the rulings of European bodies of similar relevance. Let's look at the causes in more depth.

Null and void dismissal and causes established by the Law

Before the publication of the ruling of the Court of Justice of the European Union, Spanish labour legislation only provided for the declaration of null and void in the following cases. Below, we are going to explain the null dismissal and the causes contemplated:

1. Suspension of the contract due to temporary maternity and paternity leave. The employer cannot dismiss a woman for taking sick leave due to risks both during pregnancy and illnesses related to the process of pregnancy, adoption or fostering.

2. Suspension of the contract for requesting breastfeeding leave. This principle is applicable to mothers of children under the age of nine months, as well as for the birth of children requiring hospitalisation. It also extends to requests for a reduction in the working day due to serious illness of the child and for reasons of legal guardianship.

3. Suspension of the contract due to a request for leave of absence. Provided that it is requested to care for children or elderly dependents.

4. Suspension of the contract for exercising rights related to victims of gender violence.

In addition to all these cases, from this very moment, there is the case of temporary disability leave.

Consequences of null dismissal and reinstatement of the worker

Another of the fundamental differences between unfair dismissal and null dismissal lies in the consequences that arise from a judge's determination that the dismissal has occurred for any of the reasons mentioned above. In this regard, the employer will be obliged to:

1. Reinstatement of the employee. If the judgment declares the dismissal null and void, the employer will be obliged to reinstate the employee and return him/her to the job he/she held at the time of termination of the contract. In addition, the employer must pay the employee all wages not received during the months that have elapsed from the effective date of the dismissal until the publication of the judgment. In the event that, during this time, the employee worked for another company or received unemployment benefits, the corresponding amounts will be deducted from the amount to be received.

2. Registration of the worker in the General Social Security Scheme. As we have explained in the previous lines, the employer is obliged to re-register the worker with the Social Security and pay the contributions corresponding to the contribution period between the day of dismissal and the publication of the judgement.

Deadlines and mechanism for claiming nullity of dismissal

Once we have clarified everything related to null and void dismissal and the reinstatement of the worker, which is the fundamental consequence deriving from the action, we must explain how the claim must be carried out.

Firstly, we must say that the Law establishes that the worker has, from the moment in which the company notifies him/her of the dismissal, 20 working days to proceed to carry out the relevant legal actions, lawsuits and claims with the purpose of having the dismissal declared null and void.

In this sense, the first step is to file a conciliation paper at the SMAC, that is, at the Mediation, Arbitration and Conciliation Service of the province in which you live. This body will then arrange an appointment for a Conciliation Act between the two parties.

In the event that an agreement is reached between the two parties, whether it be the reinstatement of the employee or otherwise, the process will come to an end. In the event that this does not happen, the employee must go to the corresponding Social Court and file a lawsuit against the employer. From there, the trial proceedings will begin in order to decide who is in the right. At this point, the decision will be taken by the judge.

A crucial precedent-setting judgment

The judgment of the High Court of Justice of the European Union referred to above concerns the case of a worker who suffered an accident at work during his working day that caused several bone fractures and who, after weeks of temporary incapacity, received a notice from the company dismissing him on disciplinary grounds on the grounds that he "had not met the company's minimum expectations in terms of performance".

The reason given for changing the denomination of this type of dismissal from unfair to null and void lies in the fact that the judges consider that there is clear discrimination against the worker on the grounds that he or she is disabled, even if only temporarily. Undoubtedly, this is an extension of rights that goes far beyond those established by Spanish law to date.

In short, null dismissal and reinstatement are two concepts that go hand in hand within the Spanish labour law framework. However, in most cases, it is difficult to prove that the reasons for the dismissal have been those contemplated by the law or those derived from the ruling of the High Court of Justice of the European Union. Moreover, it is usual that, before the publication of the judgment, both parties reach an agreement.

In any case, it is worth remembering that, in the event of suspicions of nullity of dismissal, it is always necessary to complain. To do so, the best thing to do is to contact a lawyer specialised in labour matters to provide the necessary advice to the worker.