The supervening unfitness of the employee as grounds for objective dismissal.
Supervening unfitness is a valid ground for objective dismissal when an employee loses the ability to perform essential tasks of their position due to a condition that arises during the course of the employment relationship. For this unfitness to be considered a legitimate reason for dismissal, three conditions must be met: the incapacity must have arisen during the employment, it must affect fundamental job functions, and it must be permanent. Case law establishes that it does not qualify as supervening unfitness when poor performance is due to willful misconduct or when the incapacity is temporary due to illness or accident.
The supervening ineptitude of the employee as grounds for objective dismissal
The Labour Relations Law allows dismissal for objective reasons due to the employee’s supervening ineptitude once the probation period has ended and the employee has been effectively placed within the company. This type of dismissal has traditionally raised conceptual doubts regarding when this situation can be deemed applicable. For this reason, the scope, characteristics, and conditions required to determine this type of ineptitude — not being clearly regulated by law — have had to be defined through abundant case law.
The employee’s supervening ineptitude
The High Court of Justice (TSJ) has had the opportunity to refine the concept of ineptitude through its treatment in multiple rulings, which we will explain in this article. However, this definition still raises doubts, especially regarding its limits, often involving subjective interpretations.
The law defines it as a "disqualification or lack of professional skills of the individual to perform the essential tasks of their job". According to case law from our courts, the TSJ understands the supervening ineptitude of the worker as the lack of ability to carry out a task. This court, in its application of Article 85.1 in ruling 298/15 of 23-12-2015, establishes three essential and cumulative criteria:
- A cause of ineptitude attributable to the employee,
- That this ineptitude arose during the course of the employment relationship,
- That this ineptitude affects the performance of the employee’s regular tasks, which are determined based on the employee's job category.
Cases involving poor job performance are excluded from this type of dismissal — that is, when a competent worker underperforms due to a wilful act, or when there is incapacity resulting from illness or accident leading to disability, which are different causes for contract termination and not comparable to objective dismissal due to ineptitude.
Case by case
In the referenced ruling, the TSJ confirms the supervening ineptitude of a first-response tunnel operator who, after 6 years and 300 days working for the company, is diagnosed with asthma during a routine health and safety check. Applying the above three principles, the court confirms the existence of supervening ineptitude, since it is a real ineptitude that arose during the employment relationship, affects the performance of the worker's usual tasks, and prevents them from carrying out any other task within their job category.
A very different case involved a warehouse worker who was dismissed due to severe and unstable bronchial asthma, which allegedly prevented her from opening boxes. In this case, the TSJ ruled that there was no evidence of total inability to work, as opening boxes made up only a minimal part of her regular and essential tasks.
In addition to the three criteria already mentioned, the cause of ineptitude must be:
- Real and not feigned
- Permanent and definitive, not merely circumstantial
- Significant, showing a lower-than-average aptitude for the position and profession
- Affecting tasks that are part of the agreed job duties
Conclusion
It is essential to distinguish between supervening ineptitude and other related and potentially confusing situations, which do not always justify contract termination on these grounds. Each case must be analysed in detail to assess whether supervening ineptitude exists, keeping in mind the evidentiary difficulties involved in proving it in court. If you have any questions or need clarification on this topic, don’t hesitate to contact our team of labour lawyers.