It declares the dismissal void because it considers that there was discrimination that violated the worker's right to equality.

Appeal 5313/2023 is resolved, filed against the ruling of the Social Court No. 8 of Barcelona, ​​with case number 928/2021.

A worker, a supervisor in the company, asked his boss (manager) for a meeting that was held by videoconference. During this, the worker informed him that he was having nightmares, hearing voices and having recurring dreams about a Muslim woman who spoke in French and wanted to harm him. That person was her! In the conversation they talked about personal things, including their religion, and the worker found out that his manager was Muslim. The worker was a Christian, and he thought they couldn't be friends because they didn't have the same religion.

They ended the call and shortly after the worker contacted her again to tell her that there were unknown people in her house and she didn't know if she should pay attention to them. In the images he shared it was seen that he was accompanied by police and paramedics. The boss advised him to listen to them, but the worker reacted by insulting and yelling at her. The boss who was a manager asked for a change of supervisor, and the company agreed. Anyway, he continued calling and texting her.

The worker missed work on several occasions, and justified some of these absences with a medical hospitalization report that indicated a diagnosis of psychotic break, with the recommendation to avoid cannabis use.

Finally,The company fires the worker for unjustified absences, verbal abuse and discriminatory comments to his superior. for religious reasons.

In instance, the claim was partially upheld and the unfair dismissal was recognized, although due to the worker's mental state, he was not considered responsible for his actions, even if these were proven.

The worker appealed, alleging discrimination and arguing that, on the date of dismissal, his situation was comparable to a disability. He cited violation of arts. 2 and 26 of Law 15/2022, of July 12, on Equal treatment and non-discrimination, as well as doctrine of the Superior Court of Justice of the European Union.

The Superior Court of Justiceanalyzed whether the dismissal violated fundamental rights, considering the possible disability discrimination, whether it was real(although the worker did not have a recognized disability),perceived(the company could have assumed that the worker had a recognized disability)or for appearance(the company could have acted under the belief that the worker had it, even if he did not). According to Directive 2000/78/EC, direct discrimination can occur even if the discriminated against does not have a disability, but is treated unfavorably under the belief that he or she does (as in the Coleman case of the CJEU).

The TSJ concluded that:

• Although the company claimed to be unaware of the worker's diagnosis at the time of dismissal, the evidence presented indicated the opposite.
• The reasons specified in the dismissal letter, combined with the medical context and the account made with the boss, reflect unfavorable treatment that could be interpreted as discrimination based on disability or the appearance of disability.

  Failed: Void dismissal for violation of art. 14 of the Spanish Constitution.