The supreme court clarifies the requirements to prevent a dismissal for supervening unfitness from being declared void
According to a judgment of the Spanish Supreme Court, in order to prevent a dismissal for supervening unfitness (ineptitud sobrevenida) from being declared void, an employer must prove that reasonable accommodation has been provided, and such accommodation must not constitute a disproportionate burden for the employer. It is possible to question whether the termination of the employment relationship on the aforesaid grounds (supervening unfitness) could be classed as a void dismissal due to a violation of the employee’s fundamental rights.
One of the most contentious issues in labor legislation, in connection with the termination of an employment contract and the related consequences, is the eventual declaration of the voidness of a dismissal of an employee in a situation of temporary disability. The evolution of the position taken by the Spanish courts in such cases is well known, considering (in line with the interpretation of the CJEU) that the concept of sickness can be equated with disability (specific case subject to protection) where it entails a limitation which is also long-term.
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