[Document outdated due to the entry into force of Law 15/2022, of July 12, 2002, on equal treatment and non-discrimination]
The recent judgment from the High Court of Justice of Catalonia dated 14 September 2021 provides a useful summary of current case law in this regard.
There are still those who believe that you can’t fire someone who is on temporary disability, and these people are normally surprised when you tell them that there is no law that prevents, in theory, firing someone in such a situation.
Our legal system does not establish any special protection for those on temporary disability, as mere illness is not included among the reasons for discrimination established by law.
Having said that, the fact that one is ill can bring with it certain circumstances that do call for special protection under law, and the judgment from the High Court of Justice of Catalonia exposes those circumstances clearly:
- If the illness causes a certain stigmatization or segregation of those who suffer from it as compared to the rest of the members of the workforce. This happens in the case of serious and contagious diseases such as AIDS or COVID.
- If the company stigmatizes or segregates those who are on temporary disability by means of its practices, threats, or decisions.
- If the illness may involve disability. In this case, dismissal may be considered null and void when:
- The disease is of a long duration.
The ruling also addresses the issue of the company’s “awareness” and distinguishes between an illness of a long duration “known from a time ago” (that is, when the worker has already been on temporary disability for several months, in which case knowledge of the illness’s long duration is obvious) and an illness of a long duration “looking towards the future” (that is, when the disease has just begun). In the latter case, reliable proof of the employer’s awareness of the seriousness and duration of the illness is required.
The court decision mentioned in this short text found the dismissal of the worker to be null and void, applying the second of the aforementioned circumstances. One of the employer’s representatives had the brilliant idea of stating that it was “company policy” to dismiss workers who spent a lot of time on medical leave. In this case, proving this policywas simple; however, in other cases, proof of this practicecould be obtained in another way… thus, be careful with recurring practices like this one because they could cause a lot of problems.
This recent legal doctrine brings about a bit of uncertainty in human resource management and curtails the possibility of dismissing certain members of the workforce; it adds obstacles to one of the most effective means for controlling abusive absenteeism, which can sometimes be a problem in companies. Thus, the termination of labor contracts for those on temporary disability should be approached with extreme caution and, sometimes, other avenues should be explored for the effective management of absenteeism.