Newsletter Laboral - October 2023

TEMPORARY INCAPACITY / DISMISSAL

Unfairness and non nullity of a dismissal executed during a temporary disability after law 15/2022. Ruling of the Superior Court of Justice of Valencia of May 16, 2023, Rec. 303/2023.

The dismissal was declared unfair and not null and void, since the Company justified the existence of deficiencies and irregularities of the employee prior to the temporary disability leave, and the employee did not prove functional limitations incompatible with his usual profession.   

This judgment is one more example of the uncertainty existing after the entry into force of Law 15/2022, which has caused multiple contradictory pronouncements between the courts of first instance and the High Courts of Justice, on whether the dismissal of a worker in a situation of temporary disability should or should not be declared null and void, thus overcoming the general rule applied by the judicial bodies that qualified this type of dismissal as unjustified.

DISCONNECTION / COMPENSATION

The violation of the right to disconnection does not generate automatic compensation. Ruling of the Superior Court of Justice of Catalonia of May 5, 2023, Rec. 7704/2022

The right to disconnection is not a fundamental right of those contained in the Spanish Constitution, so that the breach of the same and the existence of a causal relationship that could originate and/or influence the temporary disability suffered, would not automatically generate additional compensation for damages.

However, the existence of long working hours would make possible both the indemnified termination of the employment contract (for serious breach by the employer) and the possible demand for civil liability in the event that the contingency is declared to be occupational and a causal link between the conduct of the company and the damage caused is accredited.

A difference is established between the concurrence of health problems and their connection with the work, and the conduct aimed at harming the physical or moral integrity or the right of workers to privacy, which would imply a constitutional violation.

PSYCHOSOCIAL RISKS / COMPENSATED MORAL DAMAGES

Compensation for moral damages as a consequence of work overload reported to the company and disregarded by it. Judgment of the 2nd Labor Court of Vitoria of August 17, 2023, no. 154/2023.

The first compensation for moral damages is imposed as a consequence of the verification of the existence of an overload of work, which has resulted in a situation of stress and anxiety regarding the affected workers and this despite the fact that they were never subject to a temporary disability, although they did undergo pharmacological treatment.   

The ruling condemns the Company both to an amount of 49,181 euros for moral damages for lack of preventive measures for each affected worker, and to a dissuasive compensation to prevent the repetition of the conduct, which is set at 12,000 euros.

It should be noted that there is currently a campaign underway by the Labor and Social Security Inspection for the three-year period 2021-2023, whose strategic plan includes the analysis of psychosocial risks, as a preliminary step for workers to file a complaint to the courts or ex officio, depending on the sector.

ABSENCES / IT

The clause that penalized the situation of TI in the collection of incentives is declared null and void. Judgment of the Audiencia Nacional, dated June 19, 2023, Rec. 114/2023

The NA declares that the business practice of reducing or suppressing the incentives of employees who, having reached their individual objectives as a result of having been in a situation of temporary disability, is discriminatory on the grounds of illness, declaring the clauses of the incentive plans containing this penalty null and void. 

The referred sentence changes the criterion sustained by the courts (which accepted the reduction of the objectives in these cases in order to fight against absenteeism, among others, the Chamber itself) as a consequence of the entry into force on July 14, 2022, of Law 15/2022, which outlaws discrimination due to illness.

The same nullity applies to clauses containing a reduction of incentives as a consequence of being the recipients of a sanction or reprimand.

WORKPLACE HARASSMENT / REQUIREMENTS

There is no harassment at work if psychological damage and destructive purpose are not proven. Judgment of the Superior Court of Justice of Castilla y León of June 29, 2023, Rec. 940/2023.

A situation of high conflict (where there are several conciliated judicial proceedings, with uncontested job changes and with an infraction report issued by the Labor and Social Security Inspection following a complaint by the plaintiff for infringement of the workers' right to effective employment) does not imply the existence of harassment, since in these cases the requirement of destructive purpose, necessary for the existence of harassment at work, would be lacking.

It is reiterated that, although a pathological process of a psychological nature can be considered as deriving from an occupational contingency, it does not imply the existence of mobbing or harassment at work, since it is common that certain psychological pathologies are associated with work, but they may or may not be caused by harassment.

It should be noted that the medical reports that may be submitted by the affected party cannot be used as evidence to determine the facts constituting harassment, since they cannot conclude or determine the existence of mobbing, which is neither an illness nor a physical or psychological pathology.