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Can a worker be fired if he refuses to be vaccinated?

Legal issues related to the dismissal of workers who refuse to be vaccinated

Recently, information has appeared in the media on the statements of the French Minister of Labor, Élisabeth Borne, in which he explores the possibility of sanctioning workers who do not present the vaccination certificate at their workplace, or even to be dismissed.

These measures could not be applied today in Spain

In the event that these measures are implemented in Spain by decree, the labor law firm Fontelles Advocats understands that, in addition to its questionable constitutionality, this would raise very specific legal issues that should be resolved on a case-by-case basis in the social field courts. There would be no absolute certainty of the legality of the measure until it has been decided by the Supreme Court and / or the Constitutional Court, in the more than probable case where questions of constitutionality are raised. .

This would collapse labor courts even further and convictions would be seen both ways, in many cases contradictory and causing bewilderment in society.

Labor law protects ideological rights

Art. 54 of the Workers’ Statute provides for a system of sanctions based on behavior that the company considers to be objectively reprehensible: deliberate harm to the company, substantial drop in performance at work for no apparent reason, unjustified absences or delays, theft or assault on colleagues or customers, etc.

In these cases, during the trial, the lawyer of the company will have to prove the truth of the facts which are imputed to the worker in the letter of dismissal. And even so, the judge must assess whether these facts are proportional to the sanction imposed. Otherwise, he will declare the dismissal or the sanction inadmissible (if there are no other causes that lead to invalidity).

The problem of equating these sanctions with the non-presentation of a vaccination certificate is that in this case the alleged offender does so for ideological or conscience reasons. And on this everyone has their opinion, the judges too.

Thus, it has been observed that in almost identical cases, there were convictions declaring the origin of the dismissal based on the right to health of the colleagues and clients of the unvaccinated worker, and others in which the judge enforced the freedom of the worker and implicitly reproach the company for not having adopted all the safety measures necessary to protect the rights of workers and, at the same time, the health of their colleagues. In the latter case, he would condemn the inadmissibility or very probably the nullity of the dismissal, with all that that entails.

These situations will be very different if we are talking about outdoor or indoor work centers, with safety distances, etc.

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