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His illness forced him to take sick leave on two occasions, both of which were of short duration. However, once the company became aware of his diagnosis, it decided to fire him. It did so without proving a lack of performance or dedication on the part of the employee. Moreover, his suffering from silicosis should not have prevented him from carrying out his normal work duties, as the use of a protective mask would have been sufficient.
Now the High Court of Justice of Catalonia has ratified his dismissal as null and void, declaring it unjustified, due to the "unfit" letter in which this worker was informed of his dismissal. The letter was described as badly worded because it referred to a company in a different industry to the one in which he worked (the claimant worked with marble).
In the ruling, drafted by High Court magistrate Carlos Escribano, it is stressed that "in the height of sloppiness" it is stated in the letter that the company is dedicated to the retail clothing trade in specialised shops, "which invites one to think that a letter of dismissal has been copied from another company, the letter outline has been downloaded from the internet, or its drafting has been entrusted to the ill-named artificial intelligence" so states the court's ruling.
The court emphasises this last "particularly relevant" fact, which shows that "there was no cause whatsoever to terminate the claimant's employment contract", and the company "did not even make a special effort to formally cover its decision to terminate by assuming from the outset a possible declaration of unfair dismissal." The owners of the company simply hoped that "it (the dismissal) would not be too costly, given that the worker had not been employed for long with them, less than a year", adds the judgement.
In addition, the information contained in the statement of proven facts reinforces the existence of indications of discrimination on the grounds of disability. The preventive medical examination had detected possible respiratory problems in the worker, prescribing the use of respiratory protection equipment against silica and additional medical assessments, since exposure to this substance can cause serious illnesses such as silicosis. This placed the employee within the scope of workers especially sensitive to occupational hazards, according to article 25 of the Law on Occupational Risk Prevention (LPRL).
The ruling states that "what the company should have done on receiving the certificate of fitness to work with restrictions was to adapt the workplace to those restrictions, which, moreover, were easily surmountable by simply providing respiratory protection equipment against silica, which, furthermore, should be available to all workers exposed to this substance. Instead of making these minimal adaptations, what happened, barely three months after the certificate of fitness to work with restrictions, and four days after the last process of temporary incapacity, was the dismissal of the claimant."
For the High Court Chamber, therefore, there is a "powerful chronological element" that allows the dismissal to be linked to the worker's situation, that is to say, to the certificate of fitness with restrictions, to the appropriateness of studying the medical repercussions of exposure to silica and to the processes of temporary incapacity. The High Court of Justice held that "there is well-founded evidence of a violation of the fundamental right to non-discrimination. And, having established this, in accordance with the provisions of art. 96.1 of the LRJS [the Law Regulating Social Jurisdiction - the main employment protection law in Spain], it was up to the company to disprove them by providing an objective and reasonable justification, sufficiently proven, for the dismissal and its proportionality."
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