In a 21 September 2021 judgment,(1) the High Court of Justice of the Valencian Community nullified the dismissal of an employee who was suffering from cancer. In its decision, the Court considered whether the direct cause of the dismissal had been the employee's condition as a cancer patient and whether cancer is comparable to a disability.

The employee, who had worked at the company in question since 1996, took sick leave from May 2017 to November 2018 after being diagnosed with cancer.

As a consequence of her diagnosis, the employee began chemotherapy treatment in July 2017 and underwent a genetic study. She was advised to undergo a prophylactic mastectomy. The employee took paid annual leave and returned to work in January 2019.

The company then proceeded to dismiss the employee, alleging economic grounds in September 2019. The company was aware that the employee was going to be on sick leave again to undergo the treatment.

The employee challenged the company's decision, stating that the real cause of the dismissal was her need to take further leave in order to undergo treatment.

The first-instance ruling declared the dismissal null and void on the grounds that there was evidence of disability discrimination in accordance with European and Spanish case law, which states that a long-term illness that entails a long period of treatment can be compared to a disability.

The company appealed this ruling.

The Court argued that, in view of the chemotherapy, the first-instance ruling was correct, as there were clear indications of discrimination due to illness. The Court found that the dismissal had taken place when the employee had been medically discharged; therefore, the company was likely to have known that the employee would go on sick leave again.

With regard to the analysis of the economic grounds that the company alleged to justify the dismissal, the Court argued that, based on the quarterly value-added tax submissions, despite some fluctuations, the company had suffered no significant decrease in profit. In fact, the business was found to have good financial prospects.

Based on the inaccurate financial claims and clear evidence of discrimination, the Court ultimately upheld the first-instance decision and declared the dismissal null and void.

For further information on this topic please contact Elena Esparza or Eva Ceca at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] and [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at


(1) ECLI:ES: TSJCV:2021:5899.