Can I Dismiss an Employee on Sick Leave?

Written by Josep Conesa

Employment and insolvency lawyer

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New GROUND FOR NULL AND VOID dismissal ON THE BASIS OF ILLNESS OR HEALTH CONDITION

Whether intentionally or not, we take the view that the legislature has introduced this new ground so that dismissals of employees who are on sick leave must be either FAIR or NULL AND VOID.

We therefore strongly recommend that dismissal letters issued to employees on temporary disability (IT) leave contain sufficient reasoning and supporting evidence to ensure that any negotiation or courtroom defence is properly grounded, as we anticipate this will become an increasingly well-trodden path — both for employment lawyers defending workers, and for judges when handing down their rulings.

GROUNDS FOR NULLITY

Grounds for nullity may arise from a violation of a fundamental right, or because the law expressly provides for it. The Workers' Statute sets out numerous statutory grounds for nullity, and a judge may declare such nullity of their own motion, ruling that the company's actions are void on either of these two grounds.

Recently enacted, Law 15/2022 of 12 July, a comprehensive law on equal treatment and non-discrimination, aims to guarantee and promote the right to equal treatment and non-discrimination, and to uphold the equal dignity of all persons, in development of Articles 9.2, 10 and 14 of the Spanish Constitution.

Article 26 of that law provides that any provisions, acts or clauses in legal transactions that constitute or cause discrimination on any of the grounds listed in Article 2(1) of the law shall be absolutely null and void. Article 2, in turn, recognises every person's right to equal treatment and non-discrimination, regardless of their nationality, whether they are a minor or an adult, or whether they hold legal residence status. No one may be discriminated against on grounds of birth, racial or ethnic origin, sex, religion, belief or opinion, age, disability, sexual orientation or identity, gender expression, illness or health condition, serological status and/or genetic predisposition to illness or disorders, language, socioeconomic situation, or any other personal or social condition or circumstance.

DOES LAW 15/2022 EXCEED ITS POWERS (ULTRA VIRES)?

Article 14 of the Spanish Constitution states that "Spaniards are equal before the law and may not be discriminated against on grounds of birth, race, sex, religion, opinion or any other personal or social condition or circumstance." It makes no reference to discrimination on grounds of illness or health condition.

One possible line of defence for a company against the new trend that Law 15/2022 may give rise to would be to argue that the law exceeds its powers (ultra vires), on the basis that Article 53.1 of the Spanish Constitution establishes, as a primary safeguard for fundamental rights and freedoms, that only an Organic Law may regulate them. Furthermore, any such law must in all cases respect the essential content of those rights and freedoms.

CASE LAW TO DATE:

It is worth recalling that, several years ago, the dismissal of an employee on temporary disability (IT) was already considered null and void — a position that subsequently changed:

• From that point onwards, and until recently, the Constitutional Court  (ruling of 26 May 2008) had established that an employee's state of health or illness may, in certain circumstances, constitute a form of discrimination analogous to those expressly set out in Article 14 of the Spanish Constitution, where the illness is taken into account as a segregating factor based on the mere existence of the condition itself or on the stigmatisation of the person suffering from it as a sick person.
• ruling of the Court of Justice of the EU (CJEU) (the Daouidi case, 1 December 2016) recognised the prohibition on discrimination by an employer on grounds of apparent disability. In that case, the employee was struck by a vehicle and thrown onto the road, requiring emergency hospital treatment. In response, the employer dismissed the employee on the very day of the work-related accident, having established that his injuries would take a long time to heal and that his period of temporary disability (IT) could be significantly prolonged before he was able to return to work. The dismissal was deemed null and void on the basis that the accident constituted a reasonable appearance of lasting disability and, accordingly, the dismissal had to be regarded as discriminatory on grounds of disability.

• The High Court of Justice of Catalonia issued a ruling on 12 June 2017 overturning the ruling of Labour Court No. 33 of Barcelona of 23 December 2016, which had declared null and void the dismissal of an employee working as a waiter in a restaurant under a fixed-term full-time contract, made almost two months into a period of temporary disability (IT) arising from a work-related accident. Having referred the matter to the Court of Justice of the EU (CJEU), the court held that if the illness is reversible in nature at the time the employee is dismissed, the dismissal cannot be considered null and void, as there is no segregating element.

• The ruling of the High Court of Justice (TSJ) of Catalonia of 5 December 2017 held that a dismissal during a period of temporary disability (IT) can only have a discriminatory basis:
  • where it is based on an illness that may be regarded as long-term in nature, comparable to a disability;
  • when the dismissal is driven by discriminatory or segregatory grounds;
  • and when there is evidence of employer pressure on workers not to take sick leave, or where there are indicative signs of prior warnings from the employer.

NEW RULINGS FOLLOWING LAW 15/2022:

We recommend listening to the podcast, as it is important to contact us if you are considering the dismissal of an employee on sick leave, in order to draft a legally sound dismissal letter.

In any case, the outcome is sensitive and fact-specific, but in our view it must be said that dismissing an employee on temporary disability (IT) sick leave is not always null and void, as confirmed by the in accordance with the ruling of ruling High Court of Justice (TSJ) Madrid 455/2023 of 10 May, Appeal 118/2023

The ruling 562/2023 of the TSJ EXTREMADURA, Social Chamber – CÁCERES, however, found that the dismissal letter failed to provide adequate reasons for the alleged poor performance, and applying Law 15/2022 of 12 July on Equal Treatment and Non-Discrimination — which states that "No one may be discriminated against on grounds of (…) illness or health condition" — declared the dismissal null and void, ordering reinstatement and awarding damages of €7,500 in accordance with the amount provided for under the LISOS (Spanish Act on Social Offences and Sanctions).

Dismissing an employee on sick leave is not always null and void:

FURTHER EXAMPLES:

• In ruling 473/2022 of 13 December 2022, handed down by employment tribunal No. 1 of Vigo, it was established that of the four workers hired for the same project, only the one on temporary disability (IT) sick leave was dismissed. The court held that this constituted discrimination expressly prohibited under Article 2.1 of Law 15/2022, on grounds of illness. As a result, the dismissal was declared null and void, and the companies were ordered to reinstate the worker and pay all salary withheld from the date of dismissal. In addition, the employee was awarded €3,000 in damages for the infringement of their fundamental right to equality and non-discrimination, taking into account the employee's length of service, time worked, and the harm caused.
  
  
• In ruling 419/2022, dated 15 November 2022, of Employment Tribunal No. 1 of Gijón, the case concerned the dismissal of a female worker on the grounds that she had failed to meet the expectations for which she was hired, following the receipt of MRI results indicating a need for surgery. After her pre-employment medical assessment, the worker commenced sick leave on the grounds of temporary disability (IT) arising from a common illness, with an estimated duration classified as "long-term", of approximately 90 days. However, given the difficulty of proving the stated reason for the dismissal, the company paid her €453.27 in recognition of its being unfair. The tribunal held that, even in the absence of the traditional equivalence with discrimination, dismissal on grounds of illness constitutes an autonomous ground of nullity. The company was also ordered to reinstate the worker and to pay €3,500 in moral damages, equivalent to three months' salary, given that the sick leave certificate indicated a recovery period of 90 days.
  
  
• Employment Tribunal No. 3 of Pamplona, 4 April 2023, case no. 738/20221.
  • Dismissals in situations of illness or sick leave prior to Law 15/2022 of 12 July.2.
  • The nullity of dismissal on grounds of illness or health condition under Law 15/2022 of 12 July, a comprehensive law on equal treatment and non-discrimination.Article 26 of Law 15/2022, under the heading "absolute nullity", provides that "provisions, acts or clauses of legal transactions that constitute or give rise to discrimination on any of the grounds set out in Article 2(1) of this law shall be absolutely null and void".

It remains to be seen what position the Supreme Court will take in its case law.

Key rules regarding the classification of a dismissal based on illness or health conditions:

• Illness and health conditions are now incorporated in near-express terms as grounds for discrimination under Spanish law.
• The type of illness that may give rise to a finding of nullity is irrelevant: the law does not set an objective threshold of severity for nullity to apply. That said, cases involving serious or long-term illness, or conditions carrying social stigma, were already recognised under Spanish law as discrimination factors prior to Law 15/2022.
• The new law does not establish a case of automatic or objective nullity of the kind linked to maternity and work-life balance rights and leave, as governed by Article 55.5 of the Workers' Statute. It will therefore be for the judge to determine whether discrimination has taken place — and in our view, the judge should provide reasoned grounds for any such finding, failing which the decision would conflict with the European case law referred to above.
• A declaration of nullity of the dismissal requires proof that it is a consequence of, or caused by, the illness or health condition. It must therefore be demonstrated that the reason for the dismissal is unrelated to the illness if the dismissal is to be found fair. Where the dismissal is a consequence of or caused by the illness, it must be classified as null and void — regardless of whether the employee is on sick leave at the time, and even if the dismissal is communicated after the employee has been formally discharged and returned to work.
• The reversal of the burden of proof established under Article 30 of Law 15/2022 is fully applicable — meaning that once an employee provides indicative evidence, it is the company that must prove the dismissal was not connected to illness or health condition, or that there is an objective and reasonable justification, sufficiently proven, for the measure taken and its proportionality.
• The dismissal will be classed as unfair rather than null and void — that is, it will not be found to have a discriminatory motive and must be classified as null — in cases where there is no connection to illness but where genuine grounds for dismissal exist, yet the termination decision fails the proportionality test (the gradualist approach):
  • the sanction imposed is excessive,
  • or where it has been established and assessed that the employer had previously tolerated the conduct in question,
  • or the alleged acts are time-barred,
  • or procedural breaches are present.
• The nullity of the dismissal is a direct consequence of the statutory prohibition on discrimination on grounds of illness or health condition (Article 2.1 of Law 15/2022), by express reference in Article 26.