We are faced with a dispute between an employee and the company where she worked. In it, the Superior Court of Justice of Madrid declares the null dismissal of the worker motivated by discrimination based on sex in which compensation for moral damages is requested.

The worker had been on sick leave due to temporary disability from November 2019 to July 2020. At the time the worker received the medical discharge, she notified her return to work in teleworking mode and stated that she wanted to request a reduction in hours to care for a minor starting in September of that same year.

The email notifying her of her return to work was sent to a colleague in the human resources department, since she did not have the email address of the department director and she did not contact her by phone. This colleague responded to the worker's request by saying that he would forward the email to the director of the department.

Three days after the notification was made to the company and at the time of his reinstatement, he was notified of his disciplinary dismissal with effect from that day, alleging contractual breach typified in article 54.2 in section e) of the Workers' Statute, which states "the continued and voluntary decrease in normal or agreed work performance."

The worker sued the company requesting compensation for moral damages and violation of fundamental rights in the amount of €25,000, alleging that this dismissal had caused her harm because it had occurred in the middle of the Covid-19 pandemic, this being a difficult time to start a new job search.

The dispute was heard by the Social Court No. 32 of Madrid, and it considered that the dismissal letter did not meet the formally required requirements nor that the email sent by the worker could be considered a formal request, since it had not been proven that the email sent by the worker was immediately forwarded to the director of the department. 

The Social Court 32 declared the dismissal null and void and ordered the company to reinstate the worker in her job under the same conditions prior to the dismissal, paying the wages not received from the date on which the dismissal became effective or, failing that, to compensate her with the amount of €5,234.18.

The worker was not satisfied with the ruling of the aforementioned Court, so she filed an appeal against the ruling, which was admitted by the TSJ of Madrid.

In it, the worker argued that there was a discriminatory component that violated the fundamental right to equality, alleging that this dismissal was based on her request for a reduction in working hours. He also argued that since he had been in an IT situation for the aforementioned time, the disciplinary cause alleged for not having provided services since the beginning of his temporary disability could not exist.

The TSJ determines that the company's reason for dismissing the worker was the request for a reduction in working hours to care for a minor.

The court agrees with the defense's appeal in which the worker argued that there could be no cause for a continued and voluntary decrease in performance due to the impossibility of poor performance since she was not providing service for the company in recent months due to being in a situation of temporary disability.

Failed: The Court orders the company to reinstate the worker under the conditions she had previously and to pay the processing salaries accrued from the effective date of the dismissal until the sentence is handed down, in addition to paying the compensation of €25,000 that the worker claimed.