Labor implications of the new comprehensive equal treatment law
The new Equality Law includes illness as a new case of discrimination, so it is likely that the risk of nullity will increase significantly in those dismissals that affect workers who are on sick leave. On July 13, 2022, the new comprehensive Law 15/2022 for equal treatment and non-discrimination came into force, which aims to ensure the equality of all persons, prevent and eradicate any type of discrimination and guarantee the effective protection of the victims of discrimination in all social spheres, both public and private. Consequently, the entry into force of this law has meant de facto the imposition of new obligations for companies and rights for workers. Specifically, it has entailed the following new developments in the labor field:
New cases of discrimination
The new regulation expressly incorporates disease, health condition, serological status (e.g. HIV-seropositive means that a person has detectable antibodies against HIV) and/or genetic predisposition to suffer pathologies or disorders as assumptions of discrimination. Indeed, according to art. 2.3 of the law: the disease may not cover differences in treatment other than those arising from the treatment process itself, from the objective limitations it imposes for the exercise of certain activities or those required for reasons of public health. This new wording is intended to provide greater protection to sick people, and in particular to workers who are on sick leave or suffering from an illness or pathology, which may lead to new claims for nullity due to discrimination in those cases in which the dismissed worker is on Temporary Incapacity (TI). It should be remembered that, until now, the courts only considered discriminatory the dismissal of workers on TI if the sick leave was of long duration (because it was equivalent to disability), a nuance that disappears with the new law. New types of discrimination are also regulated and defined, with the following being considered violations of the right to equality: direct or indirect discrimination by association and by mistake, multiple or intersectional discrimination, denial of reasonable accommodation, harassment, inducement, order or instruction to discriminate, or to commit an act of intolerance, or failure to comply with positive action measures deriving from regulatory or conventional obligations, inaction, neglect of duties or breach of duties.
Access to employment
The new regulation also incorporates the prohibition for companies to make limitations, segregations or exclusions for access to employment, including: selection criteria, job training, professional promotion, remuneration, working hours and other working conditions; as well as in the suspension, dismissal or other causes for termination of the employment contract, as well as to ask about health conditions to applicants. As a form of control, it is expressly provided that the Labor and Social Security Inspectorate shall include in its annual plan specific plans on equal treatment and non-discrimination in access to employment and working conditions. Finally, it includes the possibility that, by regulation, companies with more than 250 workers may be required to publish the salary information necessary to analyze whether or not there are differences in salaries based on discrimination.
It is established that collective bargaining may establish affirmative action measures to prevent, eliminate and correct all forms of discrimination in the field of employment and working conditions, and may include, among others, duties of information and periodic evaluation of these objectives to the legal representatives of the workers.
New consequences in the event of non-compliance
One of the most important novelties of the Law are the consequences of non-compliance:
- Recognition of the obligation to repair the damage caused (art. 27) and the violator must provide compensation and restitution to the victim to the situation prior to the discriminatory incident, when possible. Once the discrimination has been proven, the existence of moral damage will be presumed, a fact that until now was not presumed, but had to be proven.
- Reversal of the burden of proof (art. 30). When the plaintiff or the interested party alleges discrimination and provides well-founded evidence of its existence, it will be up to the defendant, or the party to whom the discriminatory situation is imputed, to provide an objective and reasonable justification, sufficiently proven, of the measures adopted and their proportionality, completely the opposite of what has operated until now.
- Restitution to the situation prior to discriminationthis may lead to the objective consideration of the dismissals of certain groups of employees as null and void.
- You should compliance mechanisms to be provided for in the compliance mechanisms the company should be provided with the tools to detect, prevent and eradicate situations of discrimination, otherwise it could be held liable for the damage caused within its organization.
As always, AddVANTE remains at your disposal for further information or to answer any questions that may arise in connection with this article.