Invalidity of dismissal of workers on medical leave

The Social Chamber of the Supreme Court in recent judgment 764/2020, of the Social Chamber of the Supreme Court, handed down in UD, of 15.9.2020 (rec. no. 3387/2017, has come to clarify how dismissal carried out after a worker has taken leave due to temporary incapacity should be declared , stating the following:

 "in order to analyse whether or not the discrimination alleged against the company in this case exists, it is necessary to affirm the claimant worker's disability status".

At this point, the only information available is the existence of two periods of temporary incapacity in the three months prior to dismissal, with no record of the circumstances or causes of the sick leave. It is extremely difficult to deduce from this that, in effect, we are dealing with a situation of "physical, mental or psychological ailments which, interacting with various barriers, may prevent the full and effective participation of the person concerned in professional life on an equal footing with other workers", even though the plaintiff was subsequently declared permanently and totally disabled. The anti-discrimination guarantees are not conditional on the legal qualification of working capacity in the specific terms of the legislation on social security pensions.

It cannot be maintained that, as a general rule, any unlawful decision by the company, such as unjustified dismissal, constitutes an infringement of fundamental rights when it affects a worker who had previously been in a situation of temporary disability. In order for the dismissal to be considered null and void as discriminatory, the worker must suffer from some type of disability in the terms expressed in the above-transcribed definition".

This ruling adds to the criteria already known on this matter, which I will summarise below.

It should be pointed out that, as our courts have repeatedly and peacefully held, although the protection of health and the effects derived from its alteration are included, respectively, in articles 43 and 41 of the EC, they cannot be directly invoked before the Courts without prior regulatory development (art. 53.1 EC) and, evidently, they do not belong to the catalogue of fundamental rights specially protected by the EC. The constitutional function of these principles is therefore limited to informing positive legislation, the actions of the public authorities and, to a lesser extent, judicial practice, since this will be linked to the provisions of the laws which develop them.

Therefore, it is clear that the protection of health lacks direct constitutional protection, as it is not possible to translate its violations and terms of violation of fundamental rights. This is and has been the majority doctrine emanating from our courts when judging possible transgressions of the right to health, among which we must highlight, in particular, dismissal in a situation of prolonged TI.

It has been very common to claim the nullity of dismissal in workers who were on medical leave.  These claims for nullity have generally been rejected, and there is consolidated case law of the Supreme Court in unification of doctrine that rules out the nullity of such dismissals, on the grounds that there is no infringement of fundamental rights or violation of the aforementioned art. 4.2 c) of the ET. The basic reasoning behind these rulings is that, although health is a factor that is obviously linked to the individual, dismissal for this reason does not necessarily violate a fundamental right, unless it is associated with the coexistence of some discriminatory factor such as sex, religion, beliefs, social status, etc.

The causes that justify such decisions are criteria of convenience or profitability of the companies, without us necessarily having to place ourselves on the constitutional level to assess whether such decisions are in accordance with the law.

Therefore, the lack of accredited discriminatory cause, following the jurisprudential doctrine that precedes us, means that we can only classify the dismissal as unfair".

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