Termination of the employment contract and the prohibition of discrimination on health-related grounds under Law 15/2022

Abstract

The lawfulness of employer decisions motivated by the worker’s state of health has traditionally been a controversial issue. The incorporation of “illness” as a new ground of discrimination by Law 15/2022 has reignited the debate surrounding the nullity of the dismissal that affects workers who are in temporary disability, even though illness is not the same as being in temporary disability and the Labour Code has not been amended to include any specific rule about the consequences of such dismissals. However, the more recent rulings by social courts and significant academics have concluded that the new law requires a change in the previous interpretation made by the Constitutional Court and the Supreme Court, so dismissals of workers who are in temporary disability should now be declared null and void. This interpretation is inconsistent with the concept of discrimination. The Constitutional Court has ruled repeatedly that equality and non-discrimination are two separate rights. In Spain, equality is not equivalent to the absence of discrimination. Illness, by itself, cannot be a ground for discrimination without violating the constitutional concept of discrimination. After a thorough assessment, this paper concludes that the inclusion of “illness” among the list of grounds for discrimination has not modified the approach for assessing the consequences of dismissals affecting workers in temporary disability. By contrast, the combined effect of the references to “illness”, “health condition”, “serological status”, and/or “genetic predisposition to suffer from diseases or disorders” offers stronger protection against decisions based on potential or future risks that cannot be taken into account for purposes such as hiring or termination of employment.