The Labour Court number 33 of Barcelona in a ruling of December 23, 2016 has declared the dismissal of a worker on temporary disability leave caused by an accident at work. The news, explained this way, would certainly not be odd shocking coming from the indicated Court, since the particular criterion of this judge is totally in line with previous judgements delivered by him. The main issue is that the judgment was given after a request for a preliminary ruling was made by this Labour Court to the Court of Justice of the European Union (CJEU), which, by decision of December 1, 2016, Case C-395/15 Daouidi (ES) ruled for the nullity of the dismissal in the circumstances indicated.

A number of cases related to the same issue had already reached the Spanish Supreme Court. However, to this day, the Supreme Court had always considered that this circumstance (that is, a dismissal without any apparent reason, performed during the period of dismissal of a worker), could be regarded as an unfair dismissal but in no case as null and void, since a temporary disability had been never before considered as comparable to a situation of permanent disability which would certainly result in the nullity of the dismissal for direct discrimination in violation of fundamental rights according to national laws.

The newness, as we will see, lies in the fact that the CJEU considers a situation of sick leave in which the recovery time of the worker is unknown or expected to be long, similar to a situation of permanent disability.

The case in question was the case of a kitchen assistant who, after suffering a severe work accident on September 3, 2014, was diagnosed with an elbow dislocation, and during the recovery period, without having been indicated a certain date of return to work, not even an approximate date, on November 26, 2014 was dismissed for disciplinarily reasons. The dismissal letter justified the unilateral termination alleging that the worker's performance was lower than expected.

The worker filed a claim for nullity of dismissal, claiming compensation for moral and material damages of € 6,251 and € 2,841, respectively. He alleged that his fundamental right to physical integrity had been violated, as the sole reason for dismissal was his situation of temporary disability caused by the accident suffered and therefore his must be considered a case of “disability” as set out in the Directive 2000/78 / EC of November 27, 2000.

The judgment of the CJEU interprets the concept of "disability" in the sense that the worker must suffer physical or mental illness that constitutes an obstacle for him to work on an equal basis with other workers, and therefore the limitation has to be a long-term limitation.

It must also be noted that the worker was hired initially to cover an eventuality, and he had passed the probationary period, with the consent of the Chef. As a result of the aforementioned accident, the worker requested permanent disability before the INSS (Spanish National Institute of Social Security).

The CJEU in its preliminary ruling states that the mere fact that the worker is in a situation of temporary disability for work accident does not invalidate the dismissal by automatically qualifying the disability as "long-lasting". However, in cases where the duration of the capacity limitation at the time of dismissal is uncertain, or where such disability is expected to be significantly extended prior to the worker's full recovery, then the disability could be considered as a long-term disability and therefore a fundamental right would be infringed.

Thus, the Court must first determine that there is no other cause motivating the unilateral decision of the company, and second, it must verify all the objective elements in order to assess if it is actually a long-term disability, which constitutes a decisive aspect. If this were the case, the dismissal would be considered null and void. This criterion is totally different from the one usually applied by the Spanish courts to date.

It should be pointed out that the Charter of Fundamental Rights of the European Union has the same value as the Treaties and is considered primary law from the entry into force of the Treaty of Lisbon (Article 6.1 TEU)

The judge of the Labour Court 33 of Barcelona, in this case and on the basis of the facts as found, reaches the two conclusions necessary to order the nullity of the dismissal, based also on the preliminary ruling of the CJEU: on the one hand, he considers that the real cause of dismissal was none other than the mere fact of the accident, and on the other hand, that the grounds for the dismissal, which were performed 53 days after the accident, were the perception by the employer that such disability would a long-term disability.

We must wait for the confirmation of this new criterion by the National Supreme Courts, although we understand that the interpretation cannot be conceptually different from the one of the the CJEU, and the particular circumstances of each case must be taken into account henceforth. Surely, such pronouncement will also have consequences in the other member states of the Union.