El despido por enfermedad a la luz del principio de igualdad

Abstract

The deficient legal protection of the chronic disease and especially of the so-called "diseases of high feminine prevalence" is an issue that must be studied from the perspective of the principle of equality. This article has focused on the topic of dismissal for absenteeism of the worker who suffers from a chronic disease, and this reflection has been developed from the perspective of gender as an epistemological framework. The objective of the arguments presented has been to support the dismissal nullity. We have stated three argumentations. First of these argumentations is the assimilation in European jurisprudence of the long-term illness to disability. As disability dismissals are null, consequently dismissals due to long-term disease (category in which they enter, without exhausting it, all chronic diseases) are null too. Second argumentation is the violation of the right to health that implies the dismissal of a person because of his/her illness (the possibility of dismissal seriously compromises the search for health care). The third argumentation is the nullity of dismissal for indirect discrimination based on sex when the termination of the employment relationship occurs because the worker suffers from a chronic disease (especially when this chronic disease falls within the category of "high female prevalence") or when the dismissal occurs due to the accumulation of temporary disabilities linked to her condition as a woman (such as dysmenorrhea or pelvic pain).