The ruling of the Superior Court of Justice of Madrid 14280/2023 of December 21 upholds the appeal filed by the company against the ruling of the Social Court No. 20 of Madrid that ruled declaring the dismissal inadmissible, and revokes it.

The company and employee appealed against the lower court ruling in which the dismissal was declared inadmissible. In her appeal, the employee requested the annulment of the dismissal because the ruling violated her right to effective judicial protection under art. 24 of the Constitution in its aspect of guarantee of indemnity, indicating that she requested a change of job on several occasions, even though she did not announce a judicial claim, and the company proceeded to dismiss her after the sudden declaration of incompetence, which made it impossible for the worker to make any judicial claim. It also maintained that articles 14 and 15 of the Constitution were violated, invoking Directive 2000/78 and SSTC 191 and 192/2021 of December 17, considering that indirect discrimination had occurred on the grounds of disability.

For the TSJM, Business conduct does not violate the guarantee of indemnity since it cannot be said to be a reaction of the company to the exercise of a judicial action or the performance of preparatory or prior acts, not even to an extrajudicial claim; because for such a violation to occur, the business decision must necessarily be preceded by the exercise by the worker of a judicial action or of preparatory or prior acts or extrajudicial claims, circumstances that do not occur.

And furthermore, for the TSJM, the dismissal of the worker was not due to disability, but was justified by the fact of her sudden inability to perform her duties. It is not proven that the pathologies that afflict the worker (Crohn's disease and mixed adaptive disorder with anxiety and depression) entail a long-term limitation that prevents her from full and effective participation in professional life on equal terms with other workers, and in fact it is not even known that the worker was in a situation of IT at the time of dismissal, nor that long previous IT processes had occurred; Therefore, she could hardly be classified as "disabled" in the terms required by Directive 2000/78 (LCEur 2000, 3383), of November 27, 2000, relating to the establishment of a general framework for equal treatment in employment and occupation.

Therefore, the TSJM understands that there is a dismissal with cause provided for in article 52 a) of the Workers' Statute, according to which the contract may be terminated due to the worker's incompetence known or occurring after his or her effective placement in the company.