Jueves, 23 Marzo 2023

Dismissal during the trial period classified as 'null and void', when the worker is on temporary disability

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Ruling no. 31/2023, handed down by the High Court of Justice of the Balearic Islands, has qualified as null and void an employee's termination of employment which took place during his probationary period, when the employee was on medical leave for common contingencies with a diagnosis of neurotic depression. The worker, after his sick leave, and according to his complaint, "had been pressured by the company to request medical discharge".

It should be noted that his employment contract (third clause) included the following provision:

Both parties agree that, if the contract is suspended for any of the reasons set out in Art. 45 of the Workers' Statute, during the trial period, the contract will be suspended for the same period of time, which will not prevent either party from exercising the right to terminate the employment relationship.

In relation to this specific point, the ruling of the Balearic Islands' tribunal understood that the company's decision had breached the contractual provision on the interruption of the trial period, since, in the opinion of the court, the purpose of the clause "was undoubtedly to prevent dismissals such as the one that occurred".

However, and without prejudice to the foregoing, the tribunal did find that the employee's fundamental rights had been infringed, and more specifically, the right to physical integrity, assessing different circumstances in the case and arguing as follows:

(i) Firstly, because the company did not adduce any reason to suggest that the dismissal of the employee was for a reason other than that for which he was dismissed, and there was a clear lack of reasoning both in the letter of dismissal and throughout the legal proceedings.

(ii) In his opinion, the pressure under threat of dismissal for the worker to abandon the medical treatment prescribed for him constituted conduct that put his health at risk and, therefore, such conduct should be considered as prejudicial to the right to physical integrity.

(iii) In certain circumstances, (and in this case this was the case) an employer's action could entail a risk or damage to health, "when the work order generates a serious risk or danger to health".

On the basis of these arguments, the Court declared the employer's decision null and void. This was without prejudice to the fact that, in the specific case, no compensation was awarded for violation of the fundamental right to physical integrity, given that the plaintiff had not requested compensation either in the claim or at the trial or, extemporaneously, at the appeal stage.

This judicial pronouncement joins many others that, in recent years, have concluded that dismissal in a situation of medical leave must be considered null and void when certain circumstances are present.

In relation to the above, the EU Judgment of 1 December 2016 C-395/15 established doctrine, in the sense of understanding that dismissal during medical leave could be null and void when the process of medical leave was assimilated to a disability.

Subsequently, and more recently, Law 15/2022, of 12 July, on equal treatment and non-discrimination, has been approved, article 2 of which states that "no one may be discriminated against on the grounds of illness or health condition". We will have to see its impact on judicial pronouncements that may be handed down in the future.

Finally, and as we have also highlighted in other articles, the above does not exclude the possibility that dismissal during medical leave can be considered fair, as has been done in the recent judgments of the tribunal of Madrid, 22 June 2022, and the tribunal of Andalusia (Seville), 15 June 2022. In these rulings, the dismissals were deemed to be appropriate as they found a breach of contractual good faith in the workers' medical leave situation, as they were in a position to carry out their work activity.

Therefore, and in conclusion, we once again note that for a better forecast of the possible classification of the termination in these situations, an individualized analysis of each specific case is highly recommended.

In short, and as it turns out that both the dismissal and the dismissal in a medical leave situation continue to be controversial, at Belzuz Abogados, as expert lawyers in Labour Law and Social Security, we will continue to be attentive to future judicial pronouncements in order to provide the best assistance in each case.

 

Ana Escandell LucasAna Escandell Lucas 

 

Belzuz Abogados SLP

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