Can temporary incapacity be assimilated to disability for the purpose of declaring the dismissal null and void?

The Supreme Court, in unification of doctrine, confirms the judgment of instance because it is not possible to sustain an unjustified dismissal constitutes a violation of fundamental rights, even if the circumstance occurs that it affects a worker who had previously been in a situation of temporary disability, since In order for the dismissal to be classified as null, because it is discriminatory, it is necessary that said worker suffers some type of disability.

It is appealed in cassation against a sentence that understood the unfair dismissal, requesting its annulment because it is understood that there was discrimination due to illness. Both the judgment of the Court and the respondent reject that discrimination can be appreciated by reason of the illness, without stating either that the worker’s situation is susceptible of being classified as disability.

The appellant invokes, as a contradictory judgment for the purposes of acceding to the unifying cassation, the one issued by the Court of Justice of the European Union on December 1, 2016, Daouidi, C- 395/17. This is a judgment that responds to a Spanish preliminary ruling in which the concept of disability was raised for the purposes of the prohibition of discrimination established in Directive 2000/78, of November 27, 2000 (EDL 2000/90175), concerning the establishment of a general framework for equal treatment in employment and occupation.

The Chamber notes that the CJEU Daouidi maintains that the fact that the interested party is in a situation of TI due to an accident at work, in accordance with national law, and that it is of uncertain duration, does not mean that the limitation of his capacity It can be classified as durable according to the definition of disability mentioned by Directive 2000/78 (EDL 2000/90175), interpreted in the light of the United Nations Convention on Persons with Disabilities.

Thus, among the indications that allow us to consider that such limitation is lasting are, in particular, that, on the date of the allegedly discriminatory event, the disability of the interested party does not present a well-defined perspective regarding its termination in the short term or that said incapacity may be significantly prolonged before the recovery of said person. The STJUE in question adds that, in order to verify the durability, the judge or court must base itself on all the objective elements at its disposal, in particular, on documents and certificates relating to the status of said person, drawn up in accordance with the knowledge and data current doctors and scientists.

The Supreme Court, following the doctrine of the CJEU, considers that the concept of disability includes a condition caused by a disease medically diagnosed as curable or incurable, when this disease carries a limitation, derived in particular from physical, mental or psychological ailments that, when interacting With various barriers, it may prevent the full and effective participation of the person in question in professional life on equal terms with other workers, and if this limitation is of long duration.

In the present case, to analyze whether or not there is discrimination, it is necessary to affirm the claimant worker’s condition of disability, and the only data available are that of the existence of two periods of temporary disability in which he incurred the three months prior to dismissal, without stating the circumstances or causes of the dismissal. It is extremely difficult to deduce from this that, indeed, we are faced with a situation such as that defined by the CJEU, even if there is a subsequent declaration of total permanent disability of the actor, since the anti-discrimination guarantees are not conditioned to the legal qualification of work capacity in the specific terms of the legislation on Social Security pensions.

Therefore, the Chamber understands that it cannot be argued that, generally speaking, any unlawful decision of the company, such as unjustified dismissal, constitutes an infringement of fundamental rights when the circumstance arises that it affects a worker who has been in IT status previously.