On July 14, the Law 15/2022, of July 12, came into effect. This law aspires to be the backbone of anti-discrimination law in our country, extensively developing various fields of action derived from Article 14 of the Constitution, which aims to guarantee and promote the right to equal treatment and non-discrimination of people.
In this case, we are faced with a novel cause of discrimination: a person's illness.
This law expands the reasons for discrimination included in the constitutional legislation, incorporating the expression "illness or health condition, serological status and/or genetic predisposition to suffer from pathologies and disorders" (art. 2.1.), which could lead, in certain cases, to a possible declaration of nullity of the dismissal (mandatory readmission) of a person in these circumstances.
Among other related articles, Article 26 defines when an act will be null and void: "Provisions, acts, or clauses of legal transactions that constitute or cause discrimination for any of the reasons set out in the first section of Article 2 of this Law are null and void."
Thus, from the combined interpretation of the outlined legal precepts, it can be deduced that a new path is opened to request the nullity of the dismissal of a person simply for being on temporary incapacity leave, regardless of its duration.
Our social courts have issued copious jurisprudential doctrine to date in this area. The Superior Court, in sentences for the unification of doctrine, has determined that the disciplinary dismissal of a worker on leave for temporary incapacity (if there are no reasons justifying the dismissal) must be declared improper, but not null.
However, from the wording of the highlighted articles of Law 15/2022, of July 12, it would be necessary to assess whether the mere illness itself is discriminatory, and that any business action, without just cause, carried out during this process and that harmed the interests of the convalescent, could lead to the nullity of the right and, therefore, mandatory readmission.
This legislation, which does not directly modify the Statute of Workers, raises questions for companies when facing the dismissal of an employee in a situation of temporary incapacity.
In the law itself, through its Article 30.1, it establishes "..., it corresponds to the defendant party or to whom the discriminatory situation is attributed the contribution of an objective and reasonable justification, sufficiently proven, of the adopted measures and their proportionality."
A recommendation is to avoid "typical or generic" dismissal letters. Obviously, there must be a certain reason, different from the simple illness, that motivates the termination decision.
A basic principle of our legal regulations is based on the fact that not all unequal treatment is discriminatory, as the plaintiff will have to prove it or indicate it indicatively.
What can already be pointed out is that this new Law will exponentially increase allegations of discrimination in dismissal lawsuits seeking nullities in termination decisions, which is why it is necessary to exercise extreme rigor and advice in decision-making given the legal uncertainty in this aspect.