Illness as cause of discrimination. Legal protection of victims of sexual violence in the workplace

In the last few months, we have witnessed the entry into force of two laws (Law 10/2022 and Law 15/2022) that will have a great impact in terms of employment law, particularly with regard to the protection against termination of certain categories of employees.

In first place, Law 15/2022, integral for equal treatment and non-discrimination (Ley 15/2022, integral para la igualdad de trato y la no discriminación), approved on July 14, includes important developments in the employment field by introducing as a new ground of forbidden discrimination "the disease or health condition, serological status and/or genetic predisposition to suffer pathology and disorders", which is now expressly incorporated in Article 14 of the Spanish Constitution alongside other forbidden discriminatory grounds already included, such as sex, racial or ethnic origin, age, etc.

The main question now is: will dismissals affecting sick employees, including those on temporary sick leave, be null and void?

A consolidated jurisprudence of the Supreme Court prior to this Law had been considering unfair dismissals of employees in a situation of temporary sick leave where a disciplinary cause was not accredited, unless there was a case of illness equivalent to a severe disability “handicapping illnesses”.

With the new Law 15/2022, all acts of discrimination, including those affecting people on temporary sick leave, will be considered automatically null and void. It uses generic terms such as "illness" or "health condition", without these being accompanied by any addition that would make it possible to delimit the cases protected by the Law, thus understanding that the mere fact of being ill is already an indicative of potential discrimination.

Furthermore, the employer's ignorance of the employee's illness or health condition would not be an obstacle for the courts to declare the dismissal null and void, since the Law also includes discrimination due to error, defined as "that which is based on an incorrect assessment of the characteristics of the person or individuals discriminated against".

In addition to reinstatement if termination is declared null and void, the victim may request damages to obtain a full reparation of the damages caused.

Finally, it should be noted that Article 30 allows the employee to benefit from the reversal of the burden of proof in the event that he/she alleges discrimination and provides reasonable signs of its existence, since it will correspond to the employer the sufficiently reasoned and proven justification of the causes of the dismissal.

In view of the above, Law 15/2022 will represent an important turnaround in the way companies proceed, since up to now the dismissal of an employee in a situation of temporary sick leave could lead, in the worst case, to the declaration of the termination being null and void, and will also be the subject of conflict in the courts, due to the lack of precision of the law.

The second rule that must be highlighted is the Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom (Ley Orgánica 10/2022, de 6 de septiembre, de garantía integral de la libertad sexual). This law aims to prevent and provide a specific response to sexual violence, suffered particularly by women.

This rule applies to "women and children who have been victims of sexual violence in Spain, regardless of their nationality and administrative situation; or abroad, provided they are of Spanish nationality".

This law has a direct impact on the employment field through the following measures and amendments to different provisions of the legal regime:

First, the law regulates the duties of prevention and awareness in the workplace, requiring companies to comply with a certain number of obligations, including the following ones:

  • Promote working conditions that prevent the commission of crimes and other conduct against sexual freedom and moral integrity at work, with special emphasis on sexual harassment and harassment based on sex.
  • Establish specific procedures for their prevention and provide a channel for complaints or claims made by those who have been victims of these conducts, including specifically those suffered in the digital environment.
  • Promote awareness and provide training for comprehensive protection against sexual violence to all employees.
  • Include sexual violence among the concurrent occupational risks in the risk assessment of the different jobs occupied by female employees.

Law 10/2022 also contains a set of employment and Social Security rights for victims of sexual violence, placing them on the same level as victims of gender violence or terrorism. In this context, they shall be entitled to (i) a reduction or reorganization of their working time; (ii) geographical mobility; (iii) change of work center; (iv) the adaptation of their job and to the support they need for their reincorporation due to their disability; (v) the suspension of the employment relationship with job reservation; (vi) the termination of the employment contract; and (vii) unemployment protection.

Moreover, absences or lack of punctuality to work due to the physical or psychological situation derived from sexual violence shall be considered justified and shall be remunerated, notwithstanding that such absences shall be reported by the employee to the company as soon as possible.

Just as in the situation of female employees who are victims of gender-based violence, the new law amends the Workers' Statute to consider the dismissal of female employees who are victims of sexual violence as null and void when the dismissal is due to the fact that they have exercised their right to effective judicial protection or the rights recognized in this law to enforce their protection or their right to social assistance.

In addition, it cannot be discharged a potential extension of these rights to male employees through case law, as this law can lead to problems of inequality between men and women by protecting exclusively female employees and leaving male victims of sexual violence outside the scope of protection of the law.



Authored by Jesús García and Lucía García.

Enrique de la Villa
Jesus Garcia


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