Whenever we mention dismissal, we all imagine it is because there is a reason for it (disciplinary or objective) that has led to the company to draw up a dismissal letter to be provided to the worker affected by the decision.
However, the casuistic in labour law is vast and it is highly likely that, on certain occasions, we are faced with absolutely unexpected situations, such as a court ruling that a dismissal is null and void or unfair in situations when, in principle, there was no apparent reason for it.
The Corte Inglés department store was faced with a case like this in 2020, when it cancelled the registration of a worker in the social security system too soon after she had been ruled to be in a situation of total permanent disability for her usual profession. An action as –apparently– simple as that could turn against a company to the point that the cancellation would result in the dismissal being reversed with the consequences that would entail (reinstatement, compensation, etc.).
Therefore, the practical issue we will analyse in this article is the following: what is the exact time when a company should request the cancellation of a worker’s social security registration who, by virtue of a court judgement, has been ruled to be in a situation of total or absolute permanent disability?
If this takes place at the wrong time, the dismissal could be considered unexpected.
Legal solution for the time to register the cancellation in these cases
First of all, it should be recalled that Article 49.1. e) of the Spanish Labour Relations Act stipulates that an employment contract is terminated due to death, severe disablement or total or absolute permanent disability, with the exception included in Article 48.2, which states that the labour relationship shall be suspended and the job shall be reserved for a period of two years when the situation of disability can be expected to be subject to review due to an improvement that would enable the worker to be reinstated in his/her job.
However, the following doubts can be raised when a worker is ruled to be in a situation of permanent disability, after needing to resort to judicial channels for such purpose: should the company immediately register the cancellation? What should it wait for? What are the risks if I make a mistake?
The High Court of Justice ruled the following in its Judgement of 24-1-2022 on a case similar to this one.
In that case, a worker was ruled to be in a situation of total permanent disability for her usual occupation by virtue of a Judgement ruled on 21-2-2020 and the company, el Corte Inglés department store, registered her cancellation in the social security system on 30-9-2020. However, the aforementioned judgement did not become absolute until 22-2-2021.
Due to this cancellation, the worker filed a legal action against her dismissal due to deeming that the company had registered such cancellation at a time that it should not have done so because the judgement was not yet absolute, claiming the termination of the labour relationship with the company up to such date was unjustified and there was no reason for it.
What was the result for the High Court of Justice of Madrid? Unfair dismissal.
The court deemed that the company registered the cancellation, by applying Article 49.1 c), too soon and should have waited until the judgement ruling that the worker was in a situation of permanent disability had become absolute. Up to such time, both the ruling on the disability and its level still needed to be decided and hence there was a possibility that the situation ruled could be reversed.
As a matter of interest, the court also ruled on the compatibility of receiving benefits for permanent disability with the severance pay for unfair dismissal and considered that they remedied different damages: on the one hand, the severance pay for dismissal covers the damages caused by unfairly depriving the worker of his/her job. On the other hand, the benefits for permanent disability cover the damages caused by an occupational accident that permanently restricts the employee’s capacity to perform his/her work.
In cases like this one, the company’s action with the most guarantees will always be to wait until the judgement that ruled the worker in question was in a situation of permanent disability at any of its levels has become absolute.
Should you have any doubts, it is always crucial to obtain prior legal advice to avoid any unexpected situations that could be detrimental to the company, such as the one analysed in this article.
Author: Carlos Diaz, lawyer at RSM Spain