Not everything happens during the trial period. The Superior Court of Justice (TSJ) of the Canary Islands declared null the dismissal of a worker who, after starting sick leave, was dismissed for not having exceeded this period of his contract. In addition, he ordered the company to compensate him in the amount of 7,501 euros, since the magistrates concluded that illness was the real cause of the dismissal and, therefore, that it was discriminatory.
The case concerns a worker hired as a lifeguard by the Canarian company Losschlagen SL in October 2023, with a trial period of two months. In early November, just two weeks later, he was fired. There is a relevant fact between the two events: the employee suffered a heart attack while working and began sick leave one day before being terminated.
The employee appealed the dismissal, denouncing that it was not a simple failure of the trial period, but rather a consequence of his illness. The company – which did not respond to elDiario.es’ questions – defended in court that the dismissal was motivated by poor performance of its work and, even, that it had already been communicated to it before suffering heart attack.
A lower court judge ruled in favor of the company, but the Canary Islands TSJ ruled in favor of the worker, declaring the dismissal null and void, which requires his reinstatement and the payment of wages not received since his dismissal. Furthermore, he estimates the compensation request at 7,501 euros for moral damage to the person concerned. The sentence can be appealed to the Supreme Court, which the media Losschlagen SL requested, without response.
More layoffs during the trial period
The trial period is a first period of employment contract, lasting up to six months for qualified technicians and up to two months for other workers (three months in small companies with up to 25 employees), at during which the employer checks if the person hired is ideal for the position. In the case of temporary contracts of a maximum duration of six months, the trial cannot exceed one month.
During this period, employers can dismiss workers without cause. There is also no compensation for the employee, so this is a particularly vulnerable time for workers.
This greater freedom to dismiss has always been accompanied by the reporting of abuses committed by workers, but these practices are now taking on more importance. The labor reform led to a sharp reduction in temporary contracts and an increase in permanent contracts, which was accompanied by a significant increase in layoffs during the trial period.
In 2023, there were on average 937,904 contract terminations for non-compliance with the trial period, according to Social Security data, or 78% more than in 2021 (before the labor reform). Those undefined at the end of this year were 12.7 million people, or 30% compared to December 2021.
The Ministry of Labor announced in April a campaign led by the Inspectorate to examine possible abuses in these dismissals. “Under no circumstances will we allow this delay to serve as an excuse for fraud. The days when workers were disposable are over,” said Vice President Yolanda Díaz.
The legislation does not require “to make a particular type of communication, nor to specify the cause which determined such a decision”. [el despido]”, recalls the judgment of the Canarian TSJ. Even if there are buts: any reason is not valid for dismissing an employee during the trial period.
“Of course”, add the magistrates, this breach of contract does not allow for “violation of the principle of equality and non-discrimination nor of fundamental rights”. This is where the court considers that the Losschlagen company broke the law, by discriminating against the person concerned by their state of health.
Professional health protection
The judgment of the Canarian TSJ is of particular importance due to the new protection of health at work thanks to the Law on Equal Treatment and Non-Discrimination approved in 2022. “Until the entry into force of law, illness and state of health not be a specific cause of discrimination if there was no disability”, explains Eduardo Rojo, professor of labor law and social security at the Autonomous University from Barcelona.
The new regulations integrate both grounds of discrimination and establish that dismissals due to these circumstances must be considered null and void. Previously, workers in a similar situation could obtain at most “a declaration of unfair dismissal” from the courts, explains Eduardo Rojo, provided they can prove that they were not dismissed for another reason. reason.
However, these reprisals lead to the cancellation of the dismissal, which is much more guaranteed for workers and also implies the recognition of compensation for moral damage for violation of fundamental rights. In this case, the magistrates consider appropriate the request of 7,501 euros, the minimum penalty for a “very serious” offense under LISOS (Law on offenses and sanctions in the social order).
In any case, the cancellation of dismissals for sick leave or illness is not automatic, recalls the Canarian TSJ, but workers must prove that there are indications that this is the reason for the termination of the contract . When these indicators exist, the company must dismantle them and provide proof that its decision was based on another cause.
This did not happen in this case, in which Losschlagen did not prove any of the alleged complaints he received from the rescuer, supported only by the testimony of a manager, full of contradictions.
