Dismissal of employees in a situation of sickness: new features introduced by the Integral Law for equal treatment and non-discrimination

Although for a period of time the possible nullity of unjustified dismissals of employees in a situation of illness was discussed, the Supreme Court settled the issue by clarifying that the dismissal should be classified as unfair (judgments of the Social Chamber of the Supreme Court of 31 May 2022 and 15 March 2018, among others). In accordance with the criterion maintained until now by the Fourth Chamber, the employee's illness does not in itself (unless we are dealing with a case of disability), constitute a cause of discrimination as contemplated in Article 14 of the Spanish Constitution.

Extension of the grounds for discrimination

However, it is foreseeable that the entry into force of Law 15/2022, of 12 July, on equal treatment and non-discrimination, will modify, in the future, the conclusion reached by the Supreme Court, as it expressly introduces as a cause of discrimination "the illness or health condition, serological state and/or genetic predisposition to suffer pathologies and disorders".

Effects on the qualification of dismissal

Article 55.5 of the Employees' Statute establishes that dismissal will be null and void when it is based on any of the causes of discrimination provided for by the Constitution or by law. Therefore, unless the letter of dismissal of a sick employee includes a solid cause that can be accredited and that justifies the company's decision to dismiss the employee, from now on the risk of nullity cannot be ruled out.

With this new regulation, at the very least, the number of lawsuits that include claims for nullity for this reason is going to skyrocket, but we will have to wait for the first judicial pronouncements on the matter to see how the courts interpret the issue.