Dismissal On Grounds of Illness Does Not Class as Discrimination, Nor Does It Go Against the Dignity or Physical/Moral Integrity of the Person

24 April 2008

Judgement from the Supreme Court (Labour Division), November 22, 2007.

With this important ruling, the Supreme Court clarifies that for purposes of qualification of dismissal, illness does not constitute a factor for discrimination. It does, however, class as illegal treatment and therefore dismissal of an employee for reasons of illness constitutes a wrongful dismissal, not a void one.

The Court considers that illness is not a motive for dismissal endorsed by Directive 2000/78, which forbids all discrimination for any reasons of disability. It is important to differentiate between the concepts of “disability” and “illness”, as well as the fundamental right of physical integrity (Art. 15 of the Constitution) with the right to one’s health as in Art. 43.1 of the Constitution. The Court points out that this last concern is not a fundamental right, but a governing principle of social and economic politics. The Supreme Court does not see either of these rights as being compromised by the dismissal of the unwell employee. Neither does it claim that there would be retaliation against the employee for having exercised their right to good health, known as a guarantee of indemnity. The dismissal occurs purely for the incapacity, initially temporary, to work.

In the same manner, the Supreme Court rejects the argument that the dignity of the person has been compromised as a basis for declaring invalid the dismissal, given that dignity can only be argued when a fundamental right has been compromised, which is not the case here.

Finally, it can be hypothesised that the dismissal could have been void in the case where the employee had pleaded and proven that they had a disability produced by the after effects of the illness, even when it had not yet been declared by the competent authority.

For further information, please contact Ana Gómez Hernández: agomez@mmmm.es