The company did not apply the proposed preventive measures after identifying a labor conflict with an impact on the worker's mental health, nor did it carry out medical surveillance adapted to the risk.

The appeal filed by the worker against the ruling of the Social Court No. 4 of Bilbao, dated 18/1/2024, is resolved in a contract termination procedure under article 50 of the Workers' Statute, which was dismissed at first instance for not appreciating serious non-compliance by the company.

The worker, head of the export area since 1997 with a full-time indefinite contract,He was on medical leave between November and December 2020 due to adjustment disorder with anxiety. Although it was initially classified as a common illness, it was finally recognized as a work accident.

Since October 2021, the worker held the position of union delegate and since November 2022, he was a member of the Works Committee for the same union.Presented a report to the Risk Prevention Committee denouncing harassment by three colleagues, causing his medical leave. The company investigated and concluded that there was no workplace harassment, although it DID identify labor conflict and psychosocial risks.

A ruling from April 2022 of the Social Court No. 5 of Bilbao recognized the contingency as a work accident, when a relationship was established between the labor conflict and the medical leave in 2020.

The worker also reported to the Labor Inspection, which in October 2022 issued a violation report and in February 2023 imposed a sanction for failing to comply with recommendations from the prevention service. The sanction was appealed.

The worker submitted several complaints to the company about digital disconnection, overtime, vacations and his refusal to appear in a corporate video.

On 07/11/2022 he caused new medical leave due to adjustment disorder with anxiety. In the records there is no date of discharge or resolution on the determination of the contingency.

In March 2023 he filed a lawsuit for art. 50.1c ET alleging serious non-compliance with occupational risk prevention, harassment linked to their union activity and violation of fundamental rights.

He requested three times, since 2019, adaptation of the day and teleworking to take care of his parents, one of them having grade 2 dependency. The first request was subject to a judicial agreement, the second was withdrawn and the third was judicially dismissed in October 2022.

The appeal was based on two reasons: the review of proven facts and the complaint of violation of art. 50 ET in relation to articles 14.1 and 22.1 of the LPRL. The worker maintained that there were serious breaches in the protection of his physical and mental integrity, as the psychosocial risks detected were not adequately managed, which justified the compensated termination of the contract.

The TSJ of the Basque Country completely rejected the first reason for the appeal and with respect to the second, argued that, The conflict does not necessarily imply corporate non-compliance, although there was a lack of action regarding the psychosocial risk detected, which does constitute a serious contractual breach..

It was recognized that the origin of the conflict was the company's refusal to adapt working hours to care for their parents, a request that was rejected on three occasions, one of which was judicially described as "capricious and lacking justification."

Since January 2020, the worker expressed symptoms of anxiety, related to work and his family situation. From then on, he filed several complaints and claims.

It was proven that the company had been aware of the conflict since May 2021, when its own investigation report demonstrated it, proposing preventive measures, including the need for monitoring and support for the complaining party by the health area of ​​the worker health prevention service. It was also found that, despite this knowledge, the company did not carry out specific medical surveillance or apply the measures recommended by its own prevention service.

The TSJ highlighted that the medical examinations carried out were standard and not individualized, which failed to comply with the business obligation to monitor health based on the risk detected. According to article 22.1 LPRL, medical surveillance must be adapted to the risks inherent to the position, including mental health when psychosocial factors are identified, as was the case.

The Court concluded that there was just cause for contractual termination due to serious failure by the employer to protect the integrity of the worker (arts. 50.1 c ET, 4.2 d and e ET and 14 LPRL).

The appeal was upheld, the lower court ruling was revoked and the termination of the employment relationship with orders the company to pay the worker €165,059.17 in compensation.