Case 828/2011

STS 828/2011
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Mercadona SA (the “employer”) sought review of a decision from the appellate court that declared the dismissal of Mr. Fernando (the “employee”) null and void and required the employer to re-employ the employee and pay back-wages from the date of dismissal.

The employee was hired as a manager at one the employer’s facilities in March of 2008. In March of 2009, the employee started suffering from health problems. He went to a public clinic twice in March and multiple times during the summer of 2009. In May of 2009, the employee went to a local emergency department and was diagnosed with paresthesia. In July, he became classified as a temporary invalid due to intermittent parethesias in his legs. He remained in this condition until October when he was discharged and able to perform regular work.

In August of 2009, the employer terminated the employee’s employment by sending him a letter. The letter noted that the employee was being terminated for failure to perform the responsibilities of his job in good faith. The employee failed one of the employer’s standard annual assessments in May of 2009 and had failed to cooperate with the employer’s own medical service during his illness. The employer explained that the reason for termination was not the disease itself, but rather the bad attitude and unwillingness of the employee to cooperate with the employer during his sick leave. In an effort to prevent litigation, the employer recognized the termination as an “unfair dismissal” and offered additional compensation.

The appellate court found that the dismissal was null and void and required the employer to re-employ the employee and pay him back-wages from the date of dismissal. The decision was founded on STC 62/2007, which found that “threatening dismissal if not leaving the public healthcare system – whose doctors deemed it necessary to stay in temporary invalidity – constitutes an infringement of the right to physical integrity described in Article 15 of the Spanish Constitution.” The employer appealed the decision to the present court based on inconsistencies in precedent from other cases.

The Court dismissed the employer’s appeal, leaving the decision of the appellate court in place.

The Court reviewed case precedent and determined that there was sufficient consistency to uphold the decision of the appellate court. The Court noted that many of the decisions referenced in the appeal were based on discrimination grounds, rather than on personal integrity grounds. As those cases were based on discrimination claims, nullity of the dismissal was not applicable. While there was some discrepancy in the cases as to whether a right to health could be implicated in nullifying dismissals in employment cases, there was consistency in applying Article 15 of the Spanish Constitution, which protects the right to physical integrity. The Court found that precedent supported the idea that “’the right not to suffer harm or damage of personal health is part of the right to personal integrity.’” While not every risk of harm to health invokes the fundamental right of integrity, it can be invoked in severe situations. Such a severe situation can occur when there is a verified risk of harm and the work order invokes that risk.

“The judgment under appeal argued, by quoting the STC [Judgment of the Constitutional Court] 62/2007, that threatening one with dismissal if one does not leave the public healthcare system –whose doctors deemed it necessary to stay in temporary invalidity– constitutes an infringement of the right to physical integrity described in Article 15 of the Spanish Constitution.” Page 6.

“La sentencia impugnada argumenta, con cita de la STC 62/2007, que la amenaza con el despido sino se abandona la protección de la salud que le brinda el sistema público, cuyos facultativos juzgaban necesaria la permanencia en la incapacidad temporal, constituye una vulneración del derecho a la integridad físicadel art. 15 de la CE.” Page 6.

“In most of the judgments of the Chamber which have been cited … The mentioned judgments exclude nullity because illness cannot be considered generally as a cause or motive of discrimination …” Page 8.

"En la mayoría de las sentencias de la Sala a las que se ha hecho referencia ... lo que se debate es la consideración como discriminatorios a efectos del art. 14 de la CE de los despidos que se producen por la situación de enfermedad de los trabajadores. Las sentencias citadas excluyen la nulidad porque la enfermedad no puede considerarse con carácter general como una causa o motivo de discriminación en ....” Page 8.


“[Case law of the Constitutional Court has] pointed out that ‘the right not to suffer harm or damage of personal health is part of the right to personal integrity’ and ‘while not every alleged case of risk or damage to health implies a violation of the fundamental right, only those which create a severe and true threat to do it’, it is specified that ‘a determined action or omission of the employer’ in the appliance of his/her faculties of directorship and control of the employment activity ‘could imply, in certain circumstances, a risk or damage to the health of the worker, the neglect of which would entail a violation of said fundamental right’.” Page 9.

“Y lo es porque enlaza con la doctrina del Tribunal Constitucional que en sus SSTC 62 y 160/2007 ha señalado que "el derecho a que no se dañe o perjudique la salud personal queda comprendido en el derecho a la integridad personal" y "si bien no todo supuesto de riesgo o daño para la salud implica una vulneración del derecho fundamental, sino tan sólo aquel que genere un peligro grave y cierto para la misma", se precisa que "una determinada actuación u omisión de la empleadora" en aplicación de su facultades de dirección y control de la actividad laboral "podría comportar, en ciertas circunstancias, un riesgo o daño para la salud de la persona trabajadora cuya desatención conllevará la vulneración del derecho fundamental citado".” Page 9.