The dismissal of the employee on sick leave after the Law 15/2022, 12th july, for equal treatment and non-discrimination

Abstract

Among the legal changes of the Law 15/2022, 12^th July, for equal treatment and non-discrimination, it must be highlighted the express inclusion of illness or health condition as a forbidden ground of discrimination in our legal system. From this premise, this paper deals with the impact of this law on the dismissals based on the fact that an employee is on sick leave. In order to do this, first of all, it is analysed the evolution of the case law of the CJEU, the Constitutional Court and the Supreme Court, as well as the judgements of the lower courts about this matter and, subsequently, it is studied the new regulation on discrimination on grounds of illness or health condition in the Law 15/2022. The main conclusion we can draw from this analysis is that, after this Law, the dismissals on grounds of illness must be declared null and void instead of unfair. However, it is not a case of objective nullity since the employee must give evidence of the violation of the right to non-discrimination.