A worker may, in certain circumstances, terminate the contract on their own initiative and still be entitled to compensation and unemployment benefit, when the employer seriously fails to protect their health. A recent ruling from Spain puts this issue back at the center of the debate and has clear parallels with Portuguese legislation.
The case was analyzed by the Superior Court of Justice of the Basque Country and involves a worker with more than two decades of connection to the company. The employee had worked as head of the export area since 1997 and the conflict began when the company refused, on several occasions, his requests to adapt working hours and telework.
These requests, presented in 2019, 2021 and 2022, were intended to allow him to care for his parents, both elderly and with different degrees of disability. Despite the family situation being duly substantiated, the company denied requests for teleworking and adaptation on several occasions, although in 2020 there was a legal agreement and, in 2022, the refusal was considered lawful by JS no. 3, according to the Spanish digital newspaper Noticias Trabajo.
Psychological impact recognized by the courts
The succession of denials ended up having serious consequences for the worker’s health. At the end of 2020, he developed an adaptive disorder with anxiety, which led to him being on sick leave for just over a month.
Initially, this loss was classified as a common disease. However, a decision by the Juzgado de lo Social no. 5 of Bilbao recognized that the situation had a professional origin, with a direct relationship between the labor conflict and the psychological state of the worker.
A relevant piece of information in this process was the result of an internal investigation carried out by the company itself, in May 2021. Although the existence of workplace harassment was not proven, the report identified psychosocial risk factors resulting from the conflict between management and workers.
Recommendations ignored and sanction from the Labor Inspectorate
Faced with these risks, the company’s prevention service recommended concrete measures, including monitoring and specific clinical support for workers. Still, these guidelines were not followed, according to the same source.
The company limited itself to carrying out generic medical examinations, the same as those applied to other personnel, without any health surveillance adapted to the identified psychological risk. This action led to the imposition of a fine of 8,196 euros by the Spanish Labor Inspectorate, for a serious infraction in terms of safety and health at work, which the company appealed.
Request for termination of the contract at the initiative of the worker
Based on this context, the worker took legal action to terminate the contract, invoking article 50 of the Spanish Workers’ Statute, which allows termination with compensation when there is a serious breach of the employer’s obligations.
Initially, the Juzgado de lo Social no. 4 of Bilbao rejected the request, understanding, according to the same source, that the facts were not serious enough to justify termination with the right to compensation.
Superior court finds worker in favor
The outcome ended up being different on appeal. The Superior Court of Justice of the Basque Country considered that the company, despite being aware of the psychosocial risk since 2021, did not adopt effective measures to mitigate it.
Given this, the court highlighted that legislation on the prevention of occupational risks obliges the employer to guarantee adequate health monitoring specific to the risks of the workplace. The absence of this individualized surveillance was considered a serious breach of contractual duties.
As a consequence, the worker’s right to terminate the contract on his/her own initiative was recognized, with the right to compensation equivalent to unfair dismissal, in the amount of 165,059.17 euros, as well as access to unemployment benefit, in accordance with .
What changes or doesn’t change in Portugal
In Portugal, the possibility for an employee to terminate the contract with just cause is provided for in article 394 of the Labor Code, which allows the termination of the relationship when the employer seriously and negligently violates its duties. These duties include the obligation to guarantee safety and health conditions at work, covering not only physical health, but also mental health. The procedure is regulated in article 395, requiring written and substantiated communication, and compensation is provided for in article 396, and may vary between 15 and 45 days of basic remuneration for each year of seniority, with a minimum of three months.
This obligation of the employer is reinforced by Law No. 102/2009, which regulates safety and health at work. The law imposes on employers the duty to prevent occupational risks and ensure health surveillance appropriate to the specific risks of the workplace. When psychosocial risk factors are identified, the company has a duty to adopt specific measures and cannot limit itself to generic assessments similar to those for other personnel.
Regarding access to unemployment benefit, the framework is set out in Decree-Law No. 220/2006. The diploma establishes that the termination of the contract with just cause on the worker’s initiative is considered a situation of involuntary unemployment, as long as there is termination with just cause, under the terms of the Labor Code. In these cases, and if the remaining contributory requirements are met, the worker may be entitled to unemployment benefit, even if he terminated the contract.
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