Success! Notice of dismissal declared invalid on the grounds of discrimination due to temporary incapacity
Ramón Salvat, a partner in the employment law department at Auris Advocats, has secured the declaration that the dismissal is invalid on the grounds of discrimination on the basis of disability against a person with a long-term temporary disability.
Case summary
The case begins with a visit from a client, a cleaner by profession, who states that she was made redundant on economic grounds and received severance pay equivalent to 20 days’ pay for each year worked. The worker had been employed on a part-time contract, working only four days a month and earning a gross monthly salary of 118 euros.
He also informed us that he had been suffering from a long-term injury – omalgia caused by a traumatic tendon rupture following a fall sustained whilst carrying out his work duties – which was why he had been on temporary sick leave for eight months and was awaiting surgery.
We have filed a claim challenging the dismissal, seeking a declaration that unlawful dismissal in accordance with the CJEU’s Daouidi ruling (C-395/15 of 1 December 2016) and other related case law, which was favourably upheld by Barcelona Labour Court No. 9, in Judgment 02/2020 of 27 December 2019, delivered by Judge Ana Consuelo Castán Hernández.
Result obtained
The judgement finds that the objective grounds set out in the letter of dismissal have not been substantiated and considers that there is compelling evidence of discriminatory behaviour on the part of the company, specifically noting that:
“… from the evidence presented at the hearing, it is asserted that the dismissal took place whilst the claimant was on temporary incapacity leave following a work-related accident and on the grounds of his disability, given that it occurred eight months after the start of the temporary incapacity leave and at a time when it was anticipated that this leave would be extended for a longer period, as surgery was required and there was a risk of lasting effects given that the pain was caused by a traumatic fracture… ”
The judgment therefore sets out the obligation to reinstate the employee on her previous terms and conditions of employment, as well as to pay her wages accrued during the proceedings. This statement is unequivocal.
What is the significance of this ruling declaring the dismissal invalid?
This is one of many judgements handed down by the Employment Tribunals in which the assessment of the evidence is particularly crucial, and it serves to reinforce the argument that the dismissal of staff on long-term temporary incapacity leave carries a real risk of the dismissal being declared null and void.
The team at Auris Advocats
