Justice forces a company to reinstate a worker fired for being sick

The Superior Court of Justice of Castilla y León has rejected the appeal filed by a marketing company that had fired a worker who was on sick leave. In its ruling, the court ratifies the annulment of the dismissal —which was communicated to it by SMS—, maintains the compensation of 5,000 euros for damages, and obliges the company to reinstate the worker and pay her the corresponding wages at the time she has been kept inactive.

In the ruling, published on July 20 and to which EL PAÍS has had access, the Court dismisses the appeal filed by the company Marketing Ponphei SL against the ruling of Social Court No. 2 of Burgos, in which recognizes that the worker had provided “founded evidence of having suffered discrimination due to her illness”, after she had sent a screenshot via WhatsApp with her leave, to which the company responded, two hours later, with a message on the that he was informed of his dismissal without giving any cause. Thus, the sentence considers that the dismissal of the employee, “indisputably involved a negative and harmful action, reactive to the exercise of constitutional rights as basic as that of health.”

In the text, the magistrates recall that termination of employment due to temporary disability —the term used to refer to sick leave—, constitutes a violation of “rights as basic as the protection of health and access to Social Security benefits” that are enshrined in article 15 of the Constitution.

legal review

The review of the cost of dismissal is a hot topic within the workplace. Parties such as Sumar, with the vice president and acting Minister of Labor, Yolanda Díaz, at the helm, have announced their willingness to review the amounts with which they compensate dismissed workers, understanding that, in many cases, they do not sufficiently compensate the affected person. “Dismissal in our country is not expensive, it is too cheap. It’s so cheap that [a las empresas] It is worth it for them to fire using the 33-day compensation ”, Díaz has defended.

The debate stems from a lawsuit filed against the Government by UGT in May 2022 before the European Committee of Social Rights, considering that Spanish labor regulations violate community legal principles regarding dismissals. The union argues that in those cases in which the end of the employment relationship occurs for reasons unrelated to the worker’s performance, the compensation they receive “does not compensate for the damage caused, nor are they dissuasive.” “Now taking a dismissal to court is more symbolic than restorative; Either the next Government changes it or the EU will,” Pepe Álvarez, general secretary of UGT, recently declared.

In November, CC OO joined this claim, presenting, for its part, a collective claim in which it denounced the lack of adaptation of the Spanish regulations to the European Social Charter, which includes “the right of workers dismissed without valid reason to adequate compensation or other appropriate relief”. Sources from both centers expect that the two Court resolutions will be announced before the end of the year, and foreseeably in the coming months.

Currently, unfair dismissal—in which the employer does not provide any justification for the termination—provides for compensation of 33 days per year worked. In the case of null dismissals, such as that of the employee from Castilla y León, the law establishes the obligation to reinstate the worker, paying and contributing his entire salary between dismissal and reinstatement.

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