On 14 July, Law 15/2022 on equal treatment and non-discrimination came into force in Spain, introducing relevant measures to prevent and repair the damage caused by discriminatory practices in all areas of society. Its scope covers education, health care and many other fields.
In the employment sphere, it introduces a crucial novelty: the inclusion of illness and any health-related condition as grounds for discrimination.
Indeed, Law 15/2022 in Spain adds to the grounds for discrimination in EU legislation (sex, disability, religion, etc.), the disease or health condition, and the serological status and/or genetic predisposition to suffer from pathologies and disorders. The temporary disability leave is explicitly included in this new contribution.
Repercussions of Law 15/2022 for the company
Therefore, a company wishing to terminate a worker’s contract on the grounds of temporary disability must justify its decision objectively and reasonably.
Applying Law 15/2022, the courts have declared null and void the dismissals of workers with a temporary disability caused by illnesses or injuries requiring a long recovery. The judges, thus, equate temporary disability with a disability, opting for the nullity of the dismissal when the cause is the state of health.
Direct consequences for the company
The company dismissing workers on the grounds of temporary disability may face:
- The nullity of the dismissal and its legal consequences: reinstatement of the worker and payment of wages until the judgement
- The foreseeable payment of compensation for damages, based on the accreditation of discrimination and presuming the existence of moral damages.
However, the law establishes in article 4.2 that not all dismissals due to temporary disability leave are discriminatory. Conducts that could be objectively justified by a legitimate aim, where dismissal is an appropriate and necessary means to achieve that purpose, shall not be regarded as discriminatory.
Ángela Ramírez de Cartagena
If you have additional questions regarding the dismissal due to temporary disability in Spain,
