2023-07-05 10:04:21
Firing a worker on sick leave does not imply, by itself, discriminatory treatment, nor is it automatically considered void by the courts.
In this sense, the most recent regulations have made progress in defending the rights of employees subject to temporary disability. However, and despite these guarantees, to consider a dismissal void it is essential that the employee provide well-founded evidence of the presence of discrimination.
This is clear from a recent resolution of the Social Court number 5 of Valladolid (whose text can be consulted here), which considers the dismissal, in full medical leave, of a cook who alleged a “discriminatory action due to illness” as the cause of the extinction to be inadmissible and not null and void. The dismissed person did not provide such indications.
Alleged breaches
The operator had been working for a company specialized in “hospital gastronomy”: specifically, in catering services aimed at “patients, health workers and public cafeterias”, as described on its website.
According to the proven facts of the sentence, the worker, assigned to the kitchen service of a nursing home in Tudela de Duero (Valladolid), took temporary disability in March 2022. The process was described as “short-term”, and the loss led the entity to hire a cook in her place.
In August of the same year, the mutual Fremap performed a lumbar spine MRI on the affected person, and found an “incipient degenerative disc disease in the last three lumbar levels.” Two small herniated discs and one protrusion were then detected.
Just eight days after the report was issued, the company informed the worker of his disciplinary dismissal, through a letter that included various breaches.
Thus, the document denounced violations “in terms of preparation and preservation of food”, with “products in poor condition” and “food with products already expired”; In addition, it reproached an “incorrect reception of the raw materials, omitting the taking of temperatures of the received products”, along with the absence of “safety and hygiene regulations” and “mandatory measures in terms of occupational risk prevention” , in addition to “disregard for established menus and diets.”
In short, such behaviors were, in the opinion of the company, constituting fraud, disloyalty, transgression of contractual good faith, breach of trust, lack of discipline and non-compliance and abandonment of the regulations on safety and health at work.
As a consequence of these facts, the employee requested a clinical psychology assessment “due to a process of reactive anxiety, related to a problem adapting to his new situation.”
Finally, and after an unsuccessful act of conciliation, the employee requested a declaration of invalid dismissal (“or, secondarily, unfair”) and compensation of 20,000 euros “for violation of fundamental rights.” For the plaintiff, his “disabling or disabling” ailments made it necessary to consider the decision as discriminatory, in addition to an attack on his physical and moral integrity.
there is no nullity
The judge declares the dismissal inadmissible. The description of the letter should allow “clear, sufficient and unequivocal knowledge” of the alleged facts, but the document was too generic: it limited itself to collecting “a series of breaches”, without detailing “dates or situations in which could produce”.
In addition, the reasoning continues, the employee had been on medical leave for more than five months, which would imply the prescription of any offense (legally, the term is six months), as there is no record of “any date of commission”.
However, the judge does not grant annulment. To justify it, she analyzes various judgments of the Court of Justice of the European Union on discrimination based on disability. These rulings determine that one cannot “purely and simply equate the concept of disability and that of disease.” Thus, there is no absolute protection “as soon as any illness appears” and, consequently, “a person who has been laid off due to illness” is not automatically shielded by disability.
At the national level, the resolution clarifies, Law 15/2022, of July 12, comprehensive for equal treatment and non-discrimination (known as the “Zerolo Law”) applies. Despite the provisions of the text “in the face of discriminatory actions motivated by simple illness”, it does not convert all dismissal of a patient into a case of “objective nullity” (as it does in cases of pregnancy). Whoever alleges discrimination must “provide well-founded evidence of its existence,” he concludes.
In short, adds the judge, “it is not proven that the company was aware of the result of the medical tests carried out on the worker by the mutual”, to which is added that the process was described as “of short duration”. In the absence of evidence, no compensation for damages can be established. The dismissal is only unfair, and the payment for the thirty-three days per year of service established by law is possible: just over 5,920 euros.
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