Comprehensive law for equal treatment and non-discrimination. Are we facing a new possibility of qualifying a null dismissal?

Law 15/2022, of July 12, comprehensive for equal treatment and non-discrimination, gives a twist to null dismissal

At the end of this period of labor legislative hyper production, a new character comes on stage, the Law 15/2022, of July 12, comprehensive for equal treatment and non-discrimination, published in the BOE of July 13, with entry into force immediately the day after its publication, by application of the tenth final provision of the standard (accompanied by LO 6/2022 of July 12 that modifies the Penal Code)

According to her Statement of Reasons and I do not remove or add a comma,

The law that is presented has the vocation of becoming the minimum common normative that contains the fundamental definitions of Spanish anti-discrimination law and, at the same time, shelters its basic guarantees, aware that, in its current state, The difficulty in the fight against discrimination lies not so much in recognizing the problem as in the real and effective protection of the victims. In short, it is not another Law of social rights but, above all, of specific anti-discrimination law, which comes to cover the discrimination that exists and those that are to come</em , (emphasis added) since the challenges of equality change with society and, consequently, the appropriate responses must also change in the future This standard is intended to to be the backbone of our country’s anti-discrimination law.

This text would deserve an in-depth analysis by itself, but logically it is not the intention of the person who writes this, since there will be other more authoritative voices that are capable of dissecting such a pompous statement of principles.

Similarly, the Statement of Reasons (in section III) recalls that in Spain we already have Royal Legislative Decree 1/2013, of November 29, which approves the Consolidated Text of the General Law on the Rights of Persons with Disabilities and their Social Inclusion, which contains a definition of disability that has expanded the assumptions of workers in this situation.

If we look at article 2 of the standard, it defines disability as “a situation that results from the interaction between people with predictably permanent disabilities and any kind of barriers that limit or prevent their full and effective participation in society, on equal terms with others.”

Similarly, section 1 of article 4 relating to rights holders states that “persons with disabilities are those who present foreseeably permanent physical, mental, intellectual or sensory deficiencies that , by interacting with various barriers, may prevent their full and effective participation in society, on an equal footing with others.”

Our intention is to focus on a very specific issue, which brings its cause in the wording of article 2.1 of the new Law that establishes that

“No one may be discriminated against based on birth, racial or ethnic origin, sex, religion, conviction or opinion, age, disability, sexual orientation or identity, gender expression, < em>disease or health condition, serological status and/or genetic predisposition to suffer pathologies and disorders, language, socioeconomic situation, or any other personal or social condition or circumstance”.</ em>

The precedents of the question

We must go back to Directive 2000/78/EC, of November 27, 2000, on the establishment of a general framework for equal treatment in employment and occupation . This community norm did not include the illness of the worker as one of the possible causes of discrimination in employment. However, his art. 1 provided for “disability” as a cause of discrimination, although it did not explain the meaning of a polysemic concept. The issue is reopened by the famous CJEU ruling of April 11, 2013 case (C-335/11), “Danmark” case that identified a sick person with certain characteristics, with the disability included in the aforementioned Directive 2000/78/CR , which for practical purposes meant expanding the list of people who could not be discriminated against because of that condition.

The CJEU ruling ruled that the concept of disability “should be interpreted in the sense that it includes a condition caused by a disease medically diagnosed as curable or incurable, when this disease entails a limitation, derived in particular from physical, mental or psychological ailments that, when interacting with various barriers, can prevent the full and effective participation of the person in question in professional life on an equal basis with other workers, and if this limitation is of long duration”.

Due to its practical incidence in the doctrine of the national courts, this element, together with the very concept of “limitation” that I underline of the temporary data, is definitive, although the problem comes when it is necessary to classify a disease of long, medium or short duration.

Later, it is necessary to cite the “Daouidi” doctrine contained in the STJUE of December 1, 2016, C-395/15, which sets the key for the dismissal to be void: certify that the situation of temporary disability of the employee is similar to a disability.

The news of the new regulation

As we said above, based on Article 14 EC, together with the grounds for discrimination included in Community and national regulations -art. 17.1 of ET- (sex, origin, including racial or ethnic origin, marital status, social status, religion or convictions, political ideas, sexual orientation or status, adherence or not to unions and their agreements, kinship ties with persons belonging to or related to with the company and language within the Spanish State), expressly incorporates, among others, those of disease or health condition, serological status and/or genetic predisposition to suffer pathologies and disorders</strong > (art. 2.1). Closing the circle, article 2.3 provides that

“The disease may not cover differences in treatment other than those deriving from the treatment process itself, the objective limitations imposed for the exercise of certain activities or those required for reasons of public health “.

However, article 4.2 reflects general doctrine by allowing certain differences that can be justified, since the difference itself is not discriminatory, that is, not all differences in treatment based in the cases listed, it will be considered discriminatory, whenever the justification of the difference is possible, specifically when it “can be objectively justified by a legitimate purpose and as an adequate, necessary and proportionate means to achieve it”. However, it is curious that this new At the moment, the classification of the causes of discrimination has not been transferred to the LISOS, but I do not think that the Government will take long to solve “oblivion”, a consequence of the peculiar and hasty way of legislating by our Executive.

First conclusion

We are facing a new cause of discrimination: illness of the worker. Even though it is not expressly included in our constitutional regulations, this circumstance -and especially the termination of the relationship when the person is fired in this situation- has been the subject of doctrinal and jurisprudential discussion in recent years.

The Supreme Court has ruled on more than a few occasions that the dismissal of a worker on sick leave due to IT (if there are no reasons to classify it as appropriate) must be declared inadmissible, but not null, unless the parameters set by the CJEU are met, that is, illness equivalent to disability (basically those long-term sick leave.)

The TS Judgment of September 15, 2020, rcud no.: 3387/2017, citing the “Daouidi” doctrine and others, as well as its own, can be cited among others, declaring the dismissal unfair, not finding the slightest element of judgment that allows us to consider that it could be a long-term limitation that prevents the full and effective participation of the worker in professional life on equal terms with other workers.</ p>

It is then forced to descend to the new regulation in relation to the nullity of the dismissals of people in a situation of IT (disease) nullity that as is known imposes, as an effect, the Mandatory reinstatement of the dismissed person, respecting all the conditions that he accredited, and the payment of processing salaries, in addition, possibly, to additional compensation for damages:

First, article 2.3 when it states that

“The disease may not cover differences in treatment other than those deriving from the treatment process itself, the objective limitations imposed for the exercise of certain activities or those required for reasons of public health ”.

And in relation to work for others, article 9.1 of the Law tells us that

“Limitations, segregations or exclusions may not be established due to the causes provided for in this law for access to employment as an employee, public or private, including selection criteria, in training for employment, in professional promotion, remuneration, working hours and other working conditions, as well as suspension, dismissal or other causes of termination of the employment contract< /strong>”.

And thirdly, article 26 regulates when an act will be null and void:

“The provisions, acts or clauses of legal transactions that constitute or cause discrimination due to any of the reasons set forth in the first section of article 2 of this law are null and void.”</em >

Final conclusion

Are we facing a new possibility of qualifying a null dismissal?

In the absence of a subsequent and serene interpretation by the courts, it can be affirmed that the simple fact of being on temporary disability leave, regardless of its duration, since the The law does not speak of short or long duration, or if the morbid situation is serious or not, it could lead to the nullity of the dismissal.

However, I do appreciate, and here comes a certain confusion, which leads to the well-known legal uncertainty, and who knows if an escape from the declaration of automatic nullity, which, Unlike other cases of objective nullity such as maternity, if we stop at art. 30.1 of the commented standard, when it regulates the rules of the burden of proof, requires the allegation of discrimination and well-founded evidence of its existence, to transfer to the company the contribution of an objective and reasonable justification (which must prove, of course) of the measures adopted and their proportionality.

This leads me to advise the client to approach the office that the dismissal letter of the worker who is on medical leave must contain a cause for dismissal, in addition to legally supported, well explained and in detail, at the same time that it can be proven, to try to avoid, or at least try, the presumption that the dismissal is due to the illness that the employee suffers.

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