Judicial practice confirms that for there to be discrimination, and, consequently, to qualify a dismissal as invalid, there must be an indicative panorama that allows us to conclude that the motive for terminating the employment relationship was, in fact, the illness of the worker.
· The employee provided his services under a temporary employment contract, temporary due to production circumstances, in order to deal with the accumulation of tasks and extra work.
· The initial term of said contract was scheduled until November 2021. Subsequently, it was extended until 07/27/2022.
· On 07/04/2022, the employee begins a period of sick leave due to an ordinary unforeseen circumstance, with a diagnosis of “damage to the intervertebral discs of the thoracic, thoracolumbar and lumbosacral regions”.
· During the vacation, the company informs the employee by a letter dated 07/22/2022 about the termination of his possible contract, which enters into force on the 27th.
· Faced with such a situation, the employee goes to court, arguing that the termination of the contract is invalid because he was discriminated against due to illness. In the same vein, he argues that sick leave is the real reason for the dismissal.
· The contentious object of this case is to determine whether discrimination actually took place and, therefore, the dismissal of an employee is not in accordance with the law.
· First, it must be remembered that the termination of employment occurs after the entry into force of Law 15/2022 of July 12, a comprehensive one on equal treatment and non-discrimination. This new regulation amends the previous regulation to include illness or health as a prohibited ground for discrimination, formerly Article 2.1. Thus, at present, dismissal due to illness of an employee will be discriminatory and will be invalidated.
· For its part, the jurisprudence has indicated that in order to determine whether a dismissal was motivated by discrimination, there must be illness before the dismissal, and, in turn, there must be clear indications that the said illness was the reason for the dismissal.
· Thus, for the Court in this case, the necessary demonstrative panorama of discrimination is not proven, since the termination of the employment relationship arises in connection with the termination of the contract itself, on the same day 27, which was already known in advance. In this sense, it has not been proven that the employer was going to make another decision, for example, to extend the contract or convert it to an indefinite one, and that he did not do this due to the appearance of sick leave. In addition, this leave was short, which did not allow him to be considered a disability, which could indeed be discriminatory.
· However, the HOA considers such a dismissal unfair due to the violation of Article 15 of the Labor Charter, since the reason for the temporary contract was not sufficiently indicated; nullity exception.
The recent Law 15/2022 includes illness as a new reason for the prohibition of discrimination. However, each individual case must be analyzed to determine whether the reason for the dismissal was actually the employee’s illness. In particular, this resolution considers the termination of a temporary contract while the subject is on vacation due to temporary disability; the conclusion that the indicative panorama does not match when the employment relationship is terminated due to the termination of the executed contract. Likewise, there was not a shred of evidence to enable us to conclude that the employer would have taken a different action if the worker had not been found ill, especially when the contract in question had already been renewed earlier.
Red: STSJ M 4970/2023