The nullity of the dismissal of an employee during temporary sick leave: will the jurisprudential criteria change?

The judgment of Labour Court no. 33 of Barcelona dated 23 December 2016 declares null and void for discrimination the dismissal of an employee in a period of temporary incapacity due to an accident at work. It supports its decision with the judgement of the Court of Justice of the European Union of 1 December 2016.

The doctrine of the Supreme Court for these situations in which the employer justifies the dismissal through “a lack of profitability in the maintenance of the post” is that we are facing an unfair dismissal, never a null and void one.

In its judgment, Labour Court no. 33 of Barcelona concludes that the dismissal of an injured employee almost two months after the accident and when they were still on sick leave constitutes discrimination on the grounds of disability.

The case triggering this decision is that in which a kitchen assistant who, after suffering an accident at work, dislocated his elbow and, although he was temporarily incapacitated, was dismissed, it being claimed as the reason that he had not met the expectations established by the company nor the performance that it considered adequate or suitable.

The dismissed employee had been hired to fill a temporary position; however upon the probationary period finishing the contract became indefinite.

The worker made a claim requesting that the dismissal be declared null and void for breach of fundamental rights, citing two reasons:

1. The violation of the fundamental right to physical integrity.
2. The actual cause or reason for his dismissal was his incapacity arising from the accident; therefore such a dismissal should be considered discriminatory, expressly citing the case law of the Court of Justice of the European Union (CJEU).

The company objected on the grounds that the doctrine of the Supreme Court had ruled out discriminatory dismissal because of illness or occupational accident.

Current status of the jurisprudence

According to the case law of the Supreme Court and the Constitutional Court, a dismissal based on illness or temporary incapacity is not considered discriminatory and therefore cannot be considered to be invalid.

For the magistrate it seems clear that the judgment of the CJEU of 1 December 2016 essentially obliges the modification of this jurisprudential doctrine in some circumstances in relation to what we explain below.

Discriminatory intent

In its judgment, the head of Court 33 considers whether, in accordance with the EU legislation and jurisprudence, a solution other than the doctrine of the Supreme Court that qualifies these dismissals as a simple ´unfairness´ can be reached. The Court´s judgment considers that such dismissals (because of work-related accidents) are invalid if they damage the principle of equality and the prohibition of discrimination, the right to physical integrity and health, the right to access social security benefits (medical and economic) and the right to work itself (which includes the right not to be dismissed unless for a “just” motive), principles and rights which are all enshrined in the Charter of Fundamental Rights of the European Union.

The judgment of the CJEU interprets the concept of “disability” in accordance with Council Directive 2000/78/CE of 27 November 2000, establishing a new general framework for equal treatment in employment and occupation. It arrives at the conclusion that to be able to classify an employee as a “person with disability” they must suffer physical, mental or psychological illnesses that may constitute a barrier to the employee being able to perform a job on an equal basis to other employees.

By definition, the European Court emphasises that the limitation must be long-term, in the sense that “on the date of dismissal, the disability of the person concerned does not present a well-defined prospect in terms of its conclusion in the near future or that said disability may be significantly extended prior to the reinstatement of said person”, the latter being a matter for the national court to assess.

Moreover, as the CJEU recalls in its judgment, in order for the dismissal to be classified as discriminatory, the employee’s disability had to be considered as a “cause” (article 2 of Directive 2000/78/CE).

Concurrence of a long-term limitation that could qualify as a “disability”

Following the judgment of the Court of Justice, the magistrate understands that in the case of a long-term incapacity, the incapacitated person qualifies as having a disability, given that the company already knew that their reinstatement would not be “in the near future”.

The magistrate concludes to the effect that, at the time of the dismissal, the complainant being in a situation of “temporary sick leave” because of an accident at work, the limitation suffered by the complainant did not “present a well-defined prospect in terms of its conclusion in the near future”, and should therefore be considered a “long-term limitation” and, consequently, a situation of “disability”.

The judge comes to the firm belief that the “real cause” of the dismissal was not the mere fact of the accident at work, nor the initial situation of temporary sick leave in itself (since this would have established an immediate dismissal), but the business perception, 53 days after the accident and following the complainant´s communication, that such a temporary sick leave became “long-term”, without “a well-defined prospect in respect of its conclusion in the near future”. And this is why the dismissal should be classified as directly discriminatory because of disability.

Conclusion

Pending the judgments of the higher instance courts, we must conclude that the reason for the existence of discrimination that results in the nullity of the dismissal is not found in the situation of temporary sick leave of the employee due to an accident at work, but rather in the perception of the business owner of a long-term and indefinite sick leave, without prospect of reinstatement. This, in the opinion of the head of Court 33 of Barcelona, must be equated to the concept of disability.

Therefore, in view of this ruling, when the business owner cannot prove that the reasons are any other than this situation of a lack of prospect of reinstatement in the near future, indeterminate return of the employee, motivated by an incapacity due to illness, will be risking the dismissal being qualified as null and void.

We understand that, more than a change of jurisprudence, as the case may be, we will find ourselves before dismissals qualifying as null and void in view of the specific circumstances of the case, but not for the mere fact of employees finding themselves in a situation of temporary sick leave.