The Court debates the existence of discrimination, the employee provided services for a delivery company through a temporary employment agency (ETT).

The defendant company filed an appeal against the Judgment of the Social Court No. 2 of Gerona, issued on June 23, 2023 regarding dismissal (orders No. 916/2022), being appealed by the worker and FOGASA.

The worker,D. Onesimus, provided services for the defendant company under a Discontinuous fixed contract from September 5, 2022, with the professional category of van delivery driver. He lent services for a user company under a contract for making available to a temporary employment company which stipulated coverage of home delivery in the province of Gerona until October 31, 2022. The employer and defendant company was the ETT.

The employment contract established a 45 day trial period, indicating that "periods of temporary disability do suspend the computation of the trial period."

September 19, 2022, D. Onesimus suffered a work accident as a result of a traffic incident. On September 20, he went to the emergency room for neck pain. He worked on the 21st and 22nd, but agreed to rest on the 23rd and 24th. On September 25th he went to the emergency room again due to back pain and on the 26th he was diagnosed with muscle contracture.

On September 26, the user company in which he provided services informed him through a WhatsApp message that, since the volume of work had decreased, they had to let him go. They informed him that he could contact the ETT to manage the documentation related to his dismissal.  That same day, the defendant company informed him that he had not passed the trial period, with effect from that same day the 26th.

After his termination, The ETT Mutual Fund processed his leave due to a work accident with effect from September 23 with provision for short-term medical leave. Subsequently, Mr. Onísimo received messages with job offers from the ETT (defendant company).

D. Onesimus has a partner hired part-time and they have a minor son. He was admitted to the hospital for anxiety from October 13 to 27, 2022.

The Social Court issued a ruling declaring the dismissal null and void., condemning the reinstatement of the worker and the payment of the salaries not received from the date of dismissal, 9/26/2022, until the end of the season that motivated the hiring, if it had already ended. In addition, he was ordered to pay compensation of €7,501 for moral damages.

The ETT filed an appeal with a single reason: infringement of art. 55 of the ET, in relation to arts. 15, 15 and 24.2 of the Spanish Constitution, as well as the jurisprudence of the TS (ruling 764/2020 of September 15) and arts.  14.2 of the ET, and 55.4 and 56 in relation to art. 217 of the Civil Procedure Law and art. 183 of the Law Regulating Social Jurisdiction. He opposed the annulment of the dismissal, arguing that a situation of temporary disability is not an indication of discrimination and that, on the date of the dismissal, the worker was not on medical leave. They alleged that the worker had suffered a work accident without medical leave and that the defendant had no knowledge of the accident because it was a temporary employment company. In addition, they maintained that Law 15/2022 does not render null and void the dismissals of workers in an IT situation.

The TSJ of Catalonia argued that there were sufficient indications that the user company decided to terminate the worker's employment, being fully aware of the circumstances of the worker's accident, his injuries and his intention to request medical leave at the time of terminating the employment relationship.  Furthermore, no evidence was presented to justify that failure to pass the trial period, that is, lack of professional aptitude, was related to the alleged decrease in workload. Therefore, everything indicates that The real reason for the dismissal was related to the worker's health status.

The Chamber considers that, after the entry into force of Law 15/2022,There is jurisprudence that expressly recognizes temporary disability as a cause of discrimination. Therefore, the dismissal of a worker for reasons of illness should be considered null and void, since it violates the right to non-discrimination.

For all this,The appeal filed by the ETT is dismissed. It is considered correct that the dismissal be declared null and void due to discrimination, as well as the additional compensation of €7,501, which corresponds to the minimum amount established in article 40.1 c) of the Law on Social Order Infractions and Sanctions.