The Constitutional Court concluded that the fairness of dismissals on the grounds of illness is decided by analysing the specific circumstances. Dismissals on the grounds of illness will not, however, be null and void as illness cannot be considered grounds for discrimination.
In the current case, the employee concealed from the company his previous state of illness, which prevented him from working in the construction sector. His dismissal was declared unfair by the Labour Court. The High Court upheld the judgment against the employee’s claim in which he requested the nullity of the dismissal as it breached the right of equality. Additionally, he believed it was discriminatory on the grounds of disability (equality and discrimination have been established in Spain as two distinct principles).
Effect on employers
Traditionally, employees on sick leave were not dismissed since there was a risk that the termination could be declared discriminatory, on the ground of health. In view of this recent case, sick employees can be dismissed under the same terms as the rest of workforce.
Judgment of the Constitutional Court of 26 May 2008