Dismissal Declared Null and Void Due to Discrimination Based on Illness: A New Court Ruling

Dismissal of an employee during illness is a situation that raises many questions. In this article, as expert employment lawyers, we will analyse cases of discriminatory dismissal on the grounds of illness and review what one of the latest court rulings says about this issue. 

What is discriminatory dismissal on the grounds of illness?

It is the termination of an employment contract as a direct or indirect consequence of an employee’s state of health. In other words, the employer decides to dismiss a person because they are ill or on sick leave, thereby violating their right to equality and non-discrimination. 

Consequences of discriminatory dismissal

A dismissal that lacks sufficient legal grounds may be declared unfair by a court. However, a dismissal based on discrimination for health-related reasons is considered an automatically unfair (null and void) dismissal because it infringes fundamental rights. 

If the dismissal is declared unfair, the employer has five days from notification of the judgment to choose between reinstating the employee or paying compensation equivalent to 30 days’ salary per year of service.

In this regard, the Spanish Workers’ Statute establishes that a dismissal shall be null and void where it is motivated by any of the grounds of discrimination prohibited by the Spanish Constitution or by law, or where it results from the violation of the employee’s fundamental rights and public freedoms. 

A null and void dismissal results in the employee’s immediate reinstatement, together with payment of the wages they failed to receive during the period following the dismissal. 

The latest ruling of the High Court of Justice of the Canary Islands on discriminatory dismissal due to illness

The High Court of Justice of the Canary Islands examined the case of an employee whose contract was terminated because she was suffering from a serious illness (progressive multiple sclerosis). She had worked for the supermarket chain Mercadona since 2017 and, in 2021, was diagnosed with progressive multiple sclerosis, requiring her job duties to be adapted to her condition. 

The company implemented an ongoing monitoring service through its occupational health department and also hired a private investigator. This process ultimately resulted in the employee’s dismissal in September 2025. The employer argued that the dismissal was justified because the employee had allegedly exaggerated or simulated her illness and carried out activities incompatible with her recovery. The High Court disagreed with this reasoning, holding that the company’s actions infringed the employee’s constitutional rights and amounted to discrimination on the grounds of illness. 

Furthermore, the High Court found that confidential medical data had been unlawfully transferred from the occupational health service to the company. The court rejected the evidence provided by the private investigators and declared it inadmissible. 

Consequently, the court held that the dismissal was null and void, ordering the company to reinstate the employee and to pay her €15,000 in compensation for moral damages. 

Is a dismissal always null and void if it occurs during temporary incapacity for work? 

No. There must be an objective and lawful reason for the dismissal in order for it to be valid. Depending on the circumstances, the dismissal may be declared fair or unfair if the stated reason is proven. However, if it is demonstrated that the real reason for the dismissal was the employee’s illness, the dismissal may be declared null and void. 

What happens if I do not want to be reinstated after a null and void dismissal? 

It is possible that, after completing legal proceedings and obtaining a judgment declaring the dismissal null and void, you may not wish to return to your employer, despite the provisions of the Spanish Workers’ Statute. In such cases, it is often possible to reach a settlement with the employer under which compensation is paid, with the assistance and advice of employment lawyers. 

What rights do I have following a null and void dismissal due to illness? 

Where a dismissal is considered discriminatory and is therefore declared null and void because it infringes fundamental rights, the employee acquires the following rights: 

• The right to reinstatement in the company and in the same position, under the same conditions that existed before the dismissal. 
• The right to back pay, consisting of the wages the employee would have earned from the date of dismissal until reinstatement. 
• Compensation for moral damages, which may be awarded in certain cases provided that the damages claimed are properly evidenced. 

What should I do if I believe my dismissal due to illness was discriminatory? 

If you wish to challenge a discriminatory dismissal based on illness, you should take the following steps: 

• Gather evidence demonstrating the circumstances surrounding the dismissal, such as emails, medical reports, and any other documentation supporting your claim. 
• Seek advice from an employment lawyer, who will:
  • Review your employment contract, payslips, dismissal letter, the reasons given for the dismissal, and any documentation you provide (emails, medical reports, WhatsApp conversations, etc.). 
  • Initiate the legal claim within 20 working days of the dismissal. It is essential to comply strictly with this deadline to avoid losing your right to bring a claim. 

Why is it important to have an employment lawyer in cases of discriminatory dismissal?

If you believe your dismissal was discriminatory, it is essential to seek the assistance of an employment lawyer for several reasons: 

• They will review your entire case file. 
• They will analyse the applicable legislation and relevant case law involving similar situations. 
• They will assess the prospects of success, the likely duration of the proceedings, and the costs of legal representation. 
• They will seek to negotiate an out-of-court settlement with the employer whenever possible, helping you avoid the expense and time involved in litigation. 

In short, having a legal professional with extensive knowledge and experience in these types of cases is essential to avoid mistakes and to ensure that your rights are fully protected. 

Contact us if you are facing one of these situations and need legal assistance.