Supreme Court Judgment no. 276/2023, of 17.04.23, analyses the case of a worker who was disciplinarily dismissed by his company in July 2020, for causing a total of 11 absences from his job which, in the company's opinion, were unjustified. The worker, who was on temporary disability, received a medical discharge from the INSS, challenged this discharge, and did not return to his post after receiving the discharge decision.
Thus, when the company warned him to return to his job, the worker informed him that "the mere contestation before the Social Security paralyses the discharge proceedings, and that this applies before 365 days and after 365 days the deadlines change".
The company, not sharing this criterion, proceeded to dismiss him on disciplinary grounds, and the employee challenged his dismissal. At first instance, the court considered that his misconduct was not justified, and that he should have returned to his post, and therefore classified the dismissal as fair.
The worker appealed the first instance judgment in appeal before the Social Division of the High Court of Justice of the Basque Country, which handed down its judgment in January 2022. The High Court, not sharing the criterion of the first judge, upheld the appeal in appeal lodged by the former employee.
Subsequently, the company lodged a cassation appeal for the unification of doctrine, invoking as a contradictory judgement with the appealed judgement, the judgement handed down by the High Court of Justice of Catalonia on 14 January 2020. (Rec. Sup. 6038/2019).
Specifically, the ruling of the TSJ of Catalonia concluded, in essence, that medical discharge for common contingencies issued within the first 365 days extinguishes the TD with effect from the day following the day on which it was issued. And for the same reason, it understands that the worker is obliged to return to work on the day on which the effects of the discharge take effect.
The said judgement reasons that, in the case of a TD that has not exhausted the 365 days, article 5.1, paragraph 3 of RD 625/2014, in its wording prior to the reform introduced by RD 1060/2022, of 27 December, amending Royal Decree 625/2014, of 18 July, which regulates certain aspects of the management and control of temporary incapacity processes during the first three hundred and sixty-five days of its duration, must be applied.
And it provides that, in the processes of TI due to common contingencies:
"The medical discharge shall terminate the worker's temporary incapacity with effect from the day following that of its issue, without prejudice to the aforementioned public service, where appropriate, continuing to provide the worker with the health care it deems appropriate. The medical discharge shall determine the obligation for the worker to return to work on the same day that it takes effect".
The Supreme Court, in its ruling, accepts and ratifies the interpretation given by the TSJ of Catalonia, and concludes that TD processes during the first 365 days have a clear and different treatment in relation to those that extend beyond that time.
The Court argues that this is contemplated in art. 170.2 of the LGSS, with the following argumentation:
"What the judgment under appeal states to justify the fact that the TD situation has been extended simply because the medical discharge has been challenged is not a regime that affects the case at hand in which, we reiterate, we are dealing with a TD that has not reached 365 days of duration, of art. 170.1 of the LGSS, in relation to the provisions of RD 625/2014".
In short, the Supreme Court is clear: medical discharge for common contingencies, issued within the first 365 days, extinguishes the TD with effect from the day after it is issued, so workers are obliged to return to work on the day it takes effect. This being so, and not being in the case of art. 170.2 of the LGSS (in its current wording until 17/03/2023).
Without prejudice to the foregoing, it is important to note that, as mentioned above, Royal Decree 625/2014, of 18 July, has been amended by the recent Royal Decree 1060/2022, of 27 December, which amends Royal Decree 625/2014, of 18 July, which regulates certain aspects of the management and control of temporary incapacity processes during the first three hundred and sixty-five days of their duration.
At Belzuz Abogados, as experts in Labour Law and Social Security, we will remain alert to any future pronouncements that may be issued following the implementation of this recent regulation.
Ana Escandell Lucas
Belzuz Abogados SLP
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