A worker at a Lidl supermarket, with lumbago, panic disorder with agoraphobia and a recognized disability of 65%, saw the Spanish courts refuse her a permanent disability pension, despite having been fired for supervening incapacity.
According to Noticias Trabajo, a Spanish website specializing in legal and labor matters, the Superior Court of Justice of Catalonia concluded that his pathologies did not reach the level of severity and permanence necessary to attribute permanent incapacity, neither in absolute nor in total degree.
According to the publication, the worker went on sick leave in March 2021, exhausting the benefit in September 2022 after reaching the maximum limit of 545 days. Even so, she continued to be covered by the process until a decision was made on the request for permanent incapacity, which ended up being communicated in March 2023.
INSS decision and start of litigation
It was in that month that the Spanish National Social Security Institute (INSS) rejected the request for permanent incapacity, considering that the required requirements were not met. The worker complained, asking for permanent absolute or, alternatively, total incapacity for her usual profession, but the request was rejected, says the same source.
In May 2023, Lidl proceeded with an objective dismissal for ineptitud supervenida (supervening ineptitude), considering that the worker was no longer able to perform her duties.
The worker, however, had a degree of disability of 65% with effect from March 3, 2022, without having recognized the need for assistance from third parties or relevant mobility difficulties under the terms referred to in the administrative decision described in the news.
The courts confirm the denial
The worker appealed to the Juzgado de lo Social no. 28 in Barcelona, which upheld the rejection. He then filed an appeal with the Superior Court of Justice of Catalonia, alleging, according to , violation of articles 194.4 and 194.5 of the Spanish General Social Security Law.
The TSJ recalled that absolute permanent incapacity applies when the consequences prevent, in practice, any professional activity with a minimum of continuity and effectiveness, and concluded that, in this specific case, an ergonomic or emotional limitation was not demonstrated sufficiently intense to prevent the work of a replacement.
The court also considered that there was no pathology of permanent severity and structural character sufficient to declare permanent incapacity, pointing out that possible periods of worsening may be classified as temporary incapacity.
As a result, the appeal was rejected. The same source states that, against this decision, an appeal for unification of doctrine may still be filed with the Supreme Court.
Legal context in Portugal
In Portugal, the reality closest to the Spanish concept of “permanent incapacity” is the disability pension (relative or absolute), regulated in the general regime, with absolute disability requiring permanent and definitive incapacity for any and all professions or work, under the terms of Decree-Law No. 187/2007.
Regarding the termination of the contract due to lack of suitability for the position, the most approximate framework is dismissal due to unsuitability (supervening unsuitability), provided for in articles 373 et seq. of the Labor Code, with its own requirements and procedure.
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