The Court maintains that the company should have assigned the employee to another service instead of opting for dismissal.

The appeal No. 764/2024 filed against the ruling dated June 4, 2024, issued by the Single Social Court of Huesca in cases No. 557/2023, is resolved.

Mr. Juan Antonio filed a lawsuit for dismissal against a company in the construction sector. He had been serving in the company since September 16, 2020 with an indefinite contract and 1st Officer category. On May 10, 2023, he received notice of dismissal with effect from May 25, 2023, with the company alleging productive and organizational causes due to a new productive context that has meant that the company adapts the company's productive offer to the growing demand for services in project works.

In 2022, Mr. Juan Antonio expressly refused to undergo the medical examination planned by the company to guarantee your right to health.In 2023, he agreed to undergo the examination, but for personal reasons he refused to undergo certain specific analyzes or tests that were carried out as part of Health Surveillance activities.  The Risk Prevention and Health Surveillance Services could not issue the certificate of aptitude required for their job in the project works under the contract or subcontract modality for which the company worked. This refusal prevented the company from being able to assign certain works to Mr. Juan Antonio, which affected business organization and planning. In 2022, the billing for this type of work represented around 30% of the total, and in fiscal year 2023 it was estimated that, according to the budgets already approved, it would be more than 70% of the total billed.

The lower court ruling considered that there was no sufficient objective cause to justify the dismissal, since the worker could perform functions in other works for private clients that in 2022 had represented around 30% of the company's turnover. However, it ruled out the annulment of the dismissal due to discrimination, considering that the true cause was the lack of medical certification and not the worker's imminent paternity, although the company was aware of this circumstance. I declare the dismissal unfair and condemn the company to reinstate the worker or compensate him with 5,657.36 euros, in addition to paying the processing salaries in the event of reinstatement.

The ruling recognizes that the proximity between the dismissal (May 2023) and the worker's paternity generates an indication of discrimination, but concludes that the true cause of the dismissal was the worker's refusal to undergo mandatory medical tests for his position. This refusal prevented him from being assigned to the company's main works, which led to the decision to dismiss him..” The dismissal does not have a discriminatory motive but rather the worker's unfitness for any job in accordance with his category... (unfitness caused by his repeated refusals to undergo the necessary analyzes to be declared fit for that purpose by the Prevention Service).”

The worker filed an appeal requesting that the dismissal be declared null and void and compensation of 10,000 euros for damages, alleging violation of the right to equality and non-discrimination. (art. 14 and 24 CE, art. 17 and 55.5 of the ET).

As established in article 22 of the Occupational Risk Prevention Law, the employer will guarantee workers periodic monitoring of their health status based on the risks inherent to the work. This surveillance can only be carried out when the worker consents, that is,It has a voluntary nature. However, there are exceptions in which medical examination IS mandatory:

• It is essential when it is necessary to evaluate the effects of working conditions on the worker's health.
• It is necessary to verify whether his health status poses a risk to himself, other workers or third parties.
• When established in a legal standard for especially dangerous activities.

The Chamber concluded that the company had proven sufficient evidence to demonstrate that the measure adopted was not related to the worker's paternity, therefore, the dismissal was not considered discriminatory. Although the reason alleged for the termination of the contract was real, the company did not justify its origin.The reason for the dismissal was the worker's refusal to undergo a medical examination and obtain the certificate of fitness required to perform functions in certain works, clients and projects..

Therefore, the TSJ of Aragón dismissed the appeal and confirmed the lower court ruling that classified the dismissal as unfair, but not null., with the corresponding legal consequences.