The Social Security has recognised an employee’s permanent incapacity that prevents him from performing his duties.
There are different degrees of permanent incapacity and not all of them lead to the termination of the employment contract. In order for such incapacity to cause the termination of the contract, it must be:
- Total. If the worker’s injuries prevent him/her from carrying out all the tasks of his/her profession (or the fundamental ones), but he/she can dedicate him/herself to another different profession.
- Absolute. If his injuries completely disable him for any profession.
- Severe disability. When the worker, apart from being unable to work, needs another person for the most essential acts of life (dressing, moving around, etc.).
In the case of partial permanent disability, the contract cannot be terminated, as it does not prevent the worker from continuing to carry out some of the essential functions of his or her usual profession. If the company is unable to relocate the worker or adapt the job, the worker may be objectively dismissed for supervening unfitness, with an indemnity of 20 days’ salary per year of service, with a limit of 12 monthly payments.
If the worker is in a situation of incapacity that allows the contract to be terminated, the termination may be carried out without the need to pay any type of compensation. To do so, the following is required:
- That the decision recognising the degree of incapacity does not foresee that the affected worker’s health will improve within two years.
- That the decision is final.
Unless the applicable collective bargaining agreement establishes some other formality, the contract is automatically terminated with the medical decision and it is not necessary to follow the procedure for objective or disciplinary dismissal (the Social Security must only be notified of the employee’s termination).
In the event that the decision declaring the degree of incapacity provides for the possibility of review for improvement within two years, the contract will be suspended – therefore, with no obligation to pay wages or contributions – but with the right of the worker to return to the job if the improvement is confirmed.
Our professionals will advise you on all the aspects to be taken into account in the event that one of your employees is recognised as permanently disabled.