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Gender perspective and employment dismissal

07/03/2019
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In recent years, the dismissal of workers in temporary disability, is subject of controversy by the labor courts.  From considering that dismissal is null and void only when the worker was discriminated because of their disability, up to considering the dismissal is null and void when the employee was dismissed being in a situation of medical leave, due to an accident at work,  when there is no expectation of an immediate reinstatement in their former position. These criteria is based on the doctrine of the Court of Justice of the European Union, from 2017.

This interpretation, was subsequently qualified by the Supreme Court to establish that for these types of dismissal it is always required to differentiate “disease” and “disability“, and only when the disease prevents the full and effective participation of the employee in the professional life, on equal terms with the other workers, would be included in the framework of the disability situation protected by Directive 2008/78.

From a practical point of view, the criteria of the Supreme Court implies that:

  1. In the cases of dismissal of a worker in a Temporary Disability situation, without alleging cause or with an insufficient cause, with payment of the compensation provided by law, and if the worker is still under temporary disability, does not imply that this dismissal is null and void.
  2. However, when the dismissal of a worker in a Temporary Disability situation occurs (with no real and sufficient cause to carry out such termination) while the worker in under a situation of the so-called “disability”, this dismissal is considered null and void, with the obligation from the Company to reincorporate the worker to the previous position and to pay the accrued salaries during the process.

A recent judgement from the Superior Court reinforces and extend the above criteria, by adding the gender perspective in a case of a disciplinary dismissal of a worker in a Temporary Disability, that was diagnosed with cancer of the uterus, by concluding that in these situations is found as discriminatory disability, as those provided for in Directive 2008/78 and the jurisprudence of the High Court of Justice of the European Union, being therefore the dismissal void and null:

  • In this situations, The Superior Court of Justice adds a new important element such as the fact of the gender perspective, given that the dismissal affects a female worker who is in a situation of “possibly serious and long-lasting illness of the female gender”. Therefore, since the reason for dismissal is non-existent, the Court considers that there is sufficient evidence to consider that the referred worker is under a disability situation and not a disease: a disease that creates a long period limitation for work activities and does not present a well-defined perspective of ending time, but rather one extended in time that prevents the worker from an ordinary participation in her working life.
  • And furthermore, as the Disability derives from a purely feminine pathology, the Court approaches the situation from a gender perspective, that implies the continuity of the more prudent interpretation of the Courts of the European Union.

The incorporation of this additional criteria generates great impact on the dynamics of dismissal. For that reason, companies in the process of dismissal of employees under Temporary Disability should extreme precautions to avoid a possible declaration of a null and void dismissal, which may entail the reinstatement of the worker, the payment of accrued salaries during the legal process, plus the payment of compensation for moral and / or material damages.

The Labor Area of UHY Fay & Co puts at your disposal all means, assistance and legal advice in order to study each specific case, so that you can face such situations as safely as possible, and avoid any economic damage resulting from this change in legal interpretation.

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