According to a judgment of the Spanish Supreme Court, in order to prevent a dismissal for supervening unfitness (ineptitud sobrevenida) from being declared void, an employer must prove that reasonable accommodation has been provided, and such accommodation must not constitute a disproportionate burden for the employer.  It is possible to question whether the termination of the employment relationship on the aforesaid grounds (supervening unfitness) could be classed as a void dismissal due to a violation of the employee’s fundamental rights.

One of the most contentious issues in labor legislation, in connection with the termination of an employment contract and the related consequences, is the eventual declaration of the voidness of a dismissal of an employee in a situation of temporary disability. The evolution of the position taken by the Spanish courts in such cases is well known, considering (in line with the interpretation of the CJEU) that the concept of sickness can be equated with disability (specific case subject to protection) where it entails a limitation which is also long-term.

Additionally, as is also known, one of the cases of termination of the employment contract on objective grounds expressly envisaged in Spanish labor legislation is the case in which the employee becomes or is found to be unfit for work after having begun to work for the employer.  Some companies terminate the employment relationship of employees who, for health reasons, cease to be able to perform the professional functions required by their job.  As a result, employees who have been dismissed on such grounds could be a situation in which, a priori, they meet the requirements stipulated by the courts for being considered in a situation of especially protected disability.

Consideration as such would require a case-by-case analysis of whether the employer’s decision is discriminatory and, accordingly, whether the dismissal can be classed as void.

It is therefore possible to question whether termination of an employment relationship on the aforesaid grounds (supervening unfitness) could be classed as a void dismissal due to a violation of the employee’s fundamental rights. In this connection, the Labor Chamber of the Spanish Supreme Court, in its judgment of February 22, 2018 (in line with the position taken by the Court of Justice of the European Union, specifically in the judgment of April 11, 2013, “Case Ring”) sets forth certain points of interest to an assessment of whether a dismissal for supervening unfitness can be classed as void.

The judgment analyses the case of an employee of a banking institution, who was dismissed on grounds of supervening unfitness following a long period in which her state of health and her capacity for work underwent a number of ups and downs. When faced with the employer’s decision to dismiss her, the employee petitioned to have the dismissal declared void, claiming that her disability gave rise to the existence of discriminatory treatment by the employer.  Although the case analyzed has specific features which must be taken into account (e.g., at the time her contract was terminated, the employee was on sick leave and had not been formally declared unfit), the fact that the employer had provided reasonable accommodation aimed at adapting the employee’s specific situation to other positions which could minimize the consequences of her being unfit for work (pursuant to article 5 of Directive 2000/78), was valued as a key factor for taking the view that the employee’s fundamental rights had not been violated.

Consequently, the Labor Chamber of the Supreme Court focused on the provision of accommodation which met the requirement of reasonability without constituting a disproportionate burden for the employer, in order to conclude that the dismissal should not be classed as void.

This is doubtless a very significant decision which will serve as a basis for requiring a detailed assessment of the accommodation provided by employers who terminate the contracts of employees who have the status of disabled, as defined by the courts.

 

Ignacio Sánchez

Labor and Employment Law Department of Garrigues