The new Spanish comprehensive law for equal treatment and non-discrimination raises questions about whether the cases in which a dismissal can be declared null and void may be broadened.
Until July 2022, terminating an employment contract, through a dismissal, of an employee on sick leave, only entailed a risk of nullity in cases where it was possible to equate the employee’s disease with a disability. This could happen, for example, in cases of long-term sick leave. However, since the publication on July 13, 2022 of Comprehensive Law 15/2022 for Equal Treatment and Non-discrimination, various doubts and opinions have been emerging regarding whether the cases in which a worker’s dismissal can be declared null and void have increased.
According to the new law, in cases where employees on sick leave are dismissed, the following new rules must be taken into account:
- The disease or health condition of a person is expressly established as a cause of discrimination.
- The provisions, acts or clauses of legal transactions that constitute or cause discrimination by reason of any of the grounds envisaged in this law will be null and void as a matter of law.
- In addition, employers will be under the obligation to repair the damage caused by providing an indemnity and restoring the victim to the situation prior to the discriminatory incident.
These new anti-discrimination rules could raise the question of whether any dismissal of a worker on sick leave or who simply has some kind of disease could be classified as a null and void dismissal if there is no objective and reasonable ground supporting the dismissal or if the ground is not duly evidenced.
This interpretation would clearly broaden the possible cases in which the dismissal is null and void (even leading to situations that in some cases could be considered ridiculous) and, given the newness of the legislation, it will fall to the courts and tribunals to analyze and interpret it. For now, the debate remains open regarding whether there is a risk that the dismissal of a worker who has, for example, a cold or the flu, can be declared null and void when discrimination is alleged and the company does not manage to prove in court that there were objective and reasonable grounds, beyond the justified or unjustified nature of the dismissal, that led to the termination of the employment contract.
