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Developments in Spanish Employment Law

Source: Lexology - Tue 17th May 2011

Following recent developments to Business law in Spain, employers will need to be careful when dismissing employees whaken absence from work due to illness. In certain cases they may be ordered to re-instate the employee if any such dismissal is found to be unlawful.

Under Spanish law dismissals on discriminatory grounds are void, which means that the employer can be forced to re-instate an employee if his dismissal is found to be unlawful. However, as far as illness is concerned, the Spanish Supreme Court (the highest Spanish Court) has always held that such dismissals may be unfair, in which case an employer can be forced to pay compensation, but they will not be void, (as rightly or wrongly they are not discriminatory), so re-instatement cannot be enforced.

Some of the more junior Spanish Courts have recently indicated that they may be willing to change their stance on this position. One such court has recently ruled that the dismissal of an employee with cancer because of his poor attendance record was void. As such the employer was ordered to re-instate him rather than just paying compensation. The Court concluded that if an employee's sickness constitutes a "social stigma", this constitutes unlawful discrimination because Article 14 of the Spanish Constitution says it is discriminatory to treat somebody less favourably as a result of their "personal or social circumstances". However, the court did not go as far as defining what was deemed to be a "social stigma", but did say that a dismissal could be discriminatory in this context if the dismisall decision was based exclusively on the employee's illness. In this example, the employee was unable to rely on the disability discrimination ruling, as cancer is not classified as being a disability under the terms of the Spanish Constitution.

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