After a year of application of the Integral Law for equal treatment and non-discrimination, the labor courts and tribunals have made a criterion up progressively on the dismissal of employees in a situation of temporary incapacity.
Law 15/2022, of 12 July, on equal treatment and non-discrimination, in force since 14 July 2022, introduced legal developments regarding the possibility that dismissals of employees in a situation of temporary disability may be declared null and void. During this time, the courts and tribunals have ruled progressively on the matter and qualified the interpretation of the norm.
This is the case of the High Court of Justice of Catalonia, which in its judgment of 3 November 2022 states that the dismissal of an employee in a situation of temporary disability due to illness should not automatically be declared null and void: “Neither before Law 15/2022, of 12 July, comprehensive for equal treatment and non-discrimination (…), nor even after it, the situation of temporary disability at the time of dismissal automatically leads to a declaration of nullity”.
In similar terms, the judgement of the Social Court no. 3 of Pamplona of 4 April 2023, despite declaring the dismissal of the employee null and void, has declared that “the new law does not establish an objective or automatic nullity case such as those linked to maternity and leave and conciliation rights in the terms regulated by art. 55.5 of the Workers’ Statute. Thus, when judging a dismissal in a situation of illness, declaring the dismissal null and void are not exclusive options, but the dismissal may be declared unlawful”.
This same conclusion has been reached by several courts that have concluded that the automatic nullity of the dismissal of an employee in a situation of temporary disability cannot be predicated on the basis of Law 15/2022:
- Social Court no. 14 of Malaga, in its ruling of 18 April 2023.
- Social Court no. 1 of Salamanca, in its ruling of 14 March 2023.
- Granada Social Court No. 1 of Granada, in its judgment of 15 February 2023.
- Social Court No. 2 of Burgos, in its judgement of 10 March 2023.
- Social Court No. 1 of Mieres (Asturias), in its ruling of 14 February 2023.
However, although these court judgements concur in considering that the application of the new law should not lead to an automatic declaration of nullity when the dismissed employee is on sick leave, the outcome of the cases prosecuted is very uneven and other rulings have also been handed down declaring the nullity of the dismissal of employees in a temporary disability. In some cases, additional compensation for damages has even been sentenced.
Finally, it should be noted that, under the new law, there is no requirement of a certain intensity, severity or permanence of the illness in order for a dismissal to be considered null and void, so that any illness, regardless of its duration, could give rise to nullity, despite the fact that, until now, the labor courts had considered that a long-term illness, comparable to disability, was necessary to conclude that the dismissal was null and void.
The possible nullity of any dismissal affecting an employee in which there may be possible discrimination due to the existence of an illness or health condition, in accordance with the wording of the rule, will mean that the Supreme Court will have to rule on the matter.
Garrigues Employment & Labor Law Department
