Discriminación

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The Galicia High Court of Justice (“TSJG”) judgment of April 13, 2020 reopens the discussion on dismissals declared invalid for being discriminatory. This judgment brings a new approach to discrimination on grounds of disability: that discrimination may not be based on an existing disability but on an “apparent” disability.

In 2016, the CJEU judgment of December 1, 2016 in the Daouidi case (C-395/15) established that the disciplinary dismissal of an employee with long-term impairments due to a temporary disability could be discriminatory and thus invalid. Since then, it has been hard to assess long-term disabilities, given the risk that employment termination decisions could be invalidated in similar situations.

The TSJG has invalidated an employee’s dismissal (allowing for reinstatement) on the same date he had a car accident on the job. The employee suffered light bruising and was in the hospital for four days.

The TSJG argues that at the time of the notice of dismissal, the employee had an apparent disability, which suggests that he was dismissed because of that disability. The employee’s recovery period and whether this disability would last much longer was unclear.

This broad interpretation of business decisions that are potentially discriminatory on grounds of disability is in line with EU law, which focuses on the appearance more than on actual fact. This line of interpretation brings a new approach to the assessment of business decisions also regarding other forms of discrimination, e.g., based on sex or religion.

In this case, the TSJG emphasizes that determining a discrimination should be based on the specific context of the dismissal decision. Therefore, although the first instance judgment found an unfair dismissal based on the health center’s discharge report issued four days after the accident (specifically, the short hospital stay and that the injuries were not serious), the TSJG, on appeal, emphasizes that the actual progress of the disability following the accident is not as important as the status of the employee’s disability at the time of the dismissal. In particular, the TSJG focuses on whether, at that time, the disability was expected to be short or long-term.

In the case at hand, timing matters, since the accident and the dismissal occurred on the same date. The TSJG takes this conjunction into account, considering that there was a causal link between the accident and the dismissal.

Our considerations on this case law development:

  • This judgment gives companies the opportunity to assess and consider disability (and other aspects like age or nationality) for business policies. In particular, it allows companies to decide if they want to prepare a diversity plan given the current suitable context. Companies are now required to update the existing equality plans to meet new legal requirements, and the business environment revolves around sustainability.
  • An “apparent disability” will not necessarily mean that the apparently disabled person be protected in every case. Apparent disabilities may be circumstantial, but determining that a business decision is discriminatory would have clear, long-term effects. Companies will have to consider this new approach when making business decisions, since it could even be misleading in the case of disabilities that are expected to be long lasting but end up being short (as in the case at hand), but particularly in cases where the opposite is true. Undermining employees’ protection against dismissals when a disability does not at first seem like a “long-term disability” but takes a turn for the worse, could undermine the purpose of this new approach.
  • Finally, the TSJG emphasizes that the employee’s situation must be assessed at the time of the dismissal. However, paradoxically, it admits on appeal medical evidence on the employee’s health status after that time, even four months after the dismissal. Article 233 of the Labor Procedure Act (“LRJS”) restricts the admission into evidence of new documents during appeal proceedings, and the facts evidenced by these documents were irrelevant for the dispute. Therefore, we consider the possibility that the judgment could have changed if the TSJG had not examined these documents.

We will pay attention to any potential appeals before the Supreme Court.

This post is also available in: Español

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Asociada

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blanca.vives@cuatrecasas.com

Asociada

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Asociada Senior del área de laboral. Elisabet se ha especializado en derecho laboral y, en particular, en cuestiones de flexibilidad interna, operaciones de cambio organizacional y modificaciones de condiciones de trabajo. Asimismo, es coautora en varios libros y monografías.

elisabet.calzada@cuatrecasas.com