This is one of the ongoing (and most incomprehensible) disputes that arise following temporary disability or sick leave.
After using up the maximum sick leave, an employee goes to the Disability Assessment Team of the National Social Security Institute (Instituto Nacional de la Seguridad Social or INSS) for an assessment of the possibility of returning to active service, and is not recognized as having any degree of permanent disability.
Having complied with his obligation to return to work, the employee is sent to the Healthcare Service of his employer for an assessment of his capacity to perform the functions specific to his job in connection with the occupational risks to which he is exposed and … what a surprise! He is declared “inept” for his job.
This gives rise to a strange dichotomy between the opinion of the INSS (which did not recognize total permanent disability to the employee, thus deeming him capable of performing all, or at least the basic, tasks of his habitual profession) and the conclusions of the Healthcare Service (according to which he lacks the professional capacity to perform his job).
In other words, although the National Social Security System finds no reason whatsoever which could justify termination of the employment contract (and payment of a pension), the opinion of the occupational medical professionals could serve as support for the lawful termination of the employment relationship due to supervening ineptitude, with the related payment of severance equal to twenty days’ salary per year of service, up to a maximum of twelve monthly payments, pursuant to article 52.a of the Workers’ Statute.
Although there are court rulings that support the possibility of terminating the contract due to supervening ineptitude, in the understanding that the conditions required for the recognition of permanent disability cannot be confused with having the minimum capacity required for adequate performance of the job (judgment of the Castilla y León High Court, in Valladolid, dated June 20, 2016, RSU 946/16), before a decision of such significance and economic importance is made, other circumstances should be examined, such as whether the employee contested the non-recognition of permanent disability; the possibility of bringing the job into line with the employee’s capacity or of relocating the employee; or the permanent or transitional nature of the employee’s lack of capacity.
Garrigues Labor and Employment Law Department