The conclusion we reach has become obsolete after the publication of the aforementioned Law 15/2022. The Spanish legislator has not found the protection offered by European legislation to people in Temporary Disability (TD) sufficient, since it has extended it in a more than remarkable way.
Article 2.1 of the aforementioned regulation states: No one may be discriminated against on the basis of birth, racial or ethnic origin, sex, religion, conviction or opinion, age, disability, sexual orientation or identity, gender expression, disease or health condition, serological status and/or genetic predisposition to suffer pathologies and disorders, language, socioeconomic situation, or any other personal or social condition or circumstance..
This norm establishes as “new reasons of discrimination”, among others, the illness, or any other personal or social circumstance, which can make discrimination omnipresent. We do not know what other personal or social circumstance the legislator is referring to in such a complicated issue. The list of circumstances “generating” discrimination seems endless.
Bearing in mind that article 30 of this law reverses the burden of proof, when the interested party alleges discrimination and provides well-founded evidence (the Temporary Disability report will suffice); as of July 15, the situation of TD seems to enter fully into the causes of the nullity of the dismissal, both disciplinary and objective, since the Workers’ Statute considers as null those dismissals that has as a motive any of the causes of discrimination prohibited in the Constitution or in the law (Art. 53.4 and 55.5 ET).
Therefore, very important grounds will be needed, not to justify the lawfulness of the dismissal, but simply to be able to avoid its nullity when firing a person with Temporary Disability. To this end, we highlight section 2 of Article 4 of this rule: The difference in treatment based on any of the causes provided for in paragraph 1 of Article 2 of this law derived from a provision, conduct, act, criterion or practice is not considered discrimination when it can be objectively justified by a legitimate purpose and as an appropriate, necessary and proportionate means to achieve it.. The end seems to justify the means as far as discrimination is concerned, which causes great legal uncertainty, especially since law does not define when an end is or is not “legitimate”.
Therefore, apart from the implications that this law will have in other areas of labor relations (hiring, remuneration levels, promotion, etc.) this rule has managed to turn dismissal into a risky activity. Mainly if we consider that this law brings with it a new sanctioning regime, which establishes for acts of discrimination or retaliatory behaviors fines ranging between € 10,000 and € 40,000.