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Dismissal during medical leave as a company policy

The TSJ (High Court of Justice) of Catalonia, issued a ruling that has been very controversial in the labour law sector, recently. It is related to dismissal during medical leave. In fact, a dismissal was declared null and void. The reason was that the company had a policy of firing workers who were continuously absent due to sick leave.


Dismissal during sick leave


Let us have a closer look at the specific case. The dismissal was caused by an employee who had a temporary contract and had been on sick leave several times due to spinal problems. It should also be noted that the employee had refused to undergo medical examinations. She had simply communicated her pathologies to her superiors in order to justify her repeated temporary absences. Finally, the company took the decision to dismiss her for her sick leave, arguing that it was company policy.


Ruling of the Supreme Court of Justice on dismissal during medical leave


Why does the High Court of Justice of Catalonia make this decision? The High Court of Justice of Catalonia found that this practice is a violation of art. 15 of the EC and that, therefore, there is a violation of the right to physical integrity.


Moreover, the main reason given by this Court is that this violation can be a threat and an element of persuasion for workers to think twice before asking for sick leave.


Therefore, the resolution of the case has resulted in the immediate reinstatement of the employee. In addition, she has received a compensation of 18,077.50 euros and the payment of unpaid wages. The Workers' Statute, specifically in article 55.5, considers that the reason for dismissal violates one of the fundamental rights and public liberties of the worker.


Positions on this ruling...


This controversy has arisen because, from one sector, it has been understood that the ruling of the TSJ of Catalonia was unprotecting companies and, on the other hand, excessively benefiting the rights of the worker. The argument used by this sector is that employees are being protected too much and that this ruling increases even more the rigour of the position that workers cannot be dismissed in any way during sick leave, thus harming the employer company by having to keep on the payroll an employee who is not really fulfilling his or her duties.


Let us remember that the idea behind this ruling is the continued practice of some companies of dismissing workers on sick leave, questioning its legality or not, by taking this measure as company policy, which can make other employees think twice before requesting sick leave from the company and discouraging workers from looking after their health for fear of dismissal.


Finally, if we are moving towards a context in which the company may find itself unprotected against the workers, or the workers against the company, you can count on our team of expert Employment Lawyers. Just contact us without commitment. We will be delighted to assist you.




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