April 2025
Law 2/2025, of 29 April, amending the consolidated text of the Workers’ Statute Act, approved by Royal Legislative Decree 2/2015, of 23 October, with regard to termination of the employment contract due to permanent disability of employees, and the consolidated text of the General Social Security Act, approved by Royal Legislative Decree 8/2015, of 30 October, with regard to permanent disability.
I. General Considerations
The aim of Law 2/2025, of 29 April (published in the Official State Gazette on 30 April), appears to be the progressive alignment, in employment-related matters, of the legal treatment of disability and permanent disability in its degrees of severe disability, absolute permanent disability, and total permanent disability. A recent example of this trend is Article 35.1 of the consolidated text of the General Law on the Rights of Persons with Disabilities and their Social Inclusion, as introduced by Final Provision Two of Law 3/2023, of 28 February, on Employment—prompting a need to align the Workers’ Statute with this legislative approach.
This intention is expressly, though somewhat obliquely, reflected in the explanatory memorandum, which references international, EU, and constitutional legal bases to justify the adoption of such a measure.
At the international level, reference is made to the United Nations Convention on the Rights of Persons with Disabilities (2006), ratified by Spain in 2007, which obliges States to guarantee accessibility and job retention through the implementation of reasonable accommodations.
At the EU level, Directive 2000/78/EC enshrines the principle of non-discrimination on grounds of disability and requires employers to take appropriate inclusion measures, unless they impose a disproportionate burden. Law 62/2003 is cited as the transposition of this Directive, and subsequently incorporated into the consolidated text of the General Law on the Rights of Persons with Disabilities (Royal Legislative Decree 1/2013). Also relevant are the constitutional reform of Article 49 of the Spanish Constitution and the CJEU Judgment of 18 January 2024 (Case C-631/22), which serve as regulatory catalysts for a structural legal reform.
It is surprising—if not concerning—that this law, which mandates reasonable accommodations, fails to mention Law 15/2022, of 12 July, on comprehensive equal treatment and non-discrimination, a key regulation in this field. Article 4.2 of that law considers the denial of reasonable accommodations to be a form of discrimination. This law has already been applied by the courts to demand the same accommodations that this new reform now explicitly requires.
In my view, this legislative oversight is due to the literal reproduction of the legal grounds cited in the CJEU judgment of 18 January 2024, without considering the fact that between the facts of that case and the present moment, Law 15/2022 entered into force. This law is, in fact, cited in the Judgment of the High Court of Justice of the Balearic Islands (STSJ Illes Balears) of 19 March 2024, Rec. 75/2022, issued by the same court that referred the preliminary question to the CJEU. That judgment declared the dismissal unfair—rather than null—due to the failure of the claimant’s representation to request nullity. However, the court expressly stated that, had nullity been requested, it would have been upheld.
Against this background, the new law amends Article 49.1 of the Workers’ Statute to disassociate the legal regime for the death of the employee (as a ground for termination) from the regime applicable to cases of permanent disability.
In parallel, the automatic termination of employment contracts for employees who are declared to be in a state of total, absolute, or severe permanent disability is eliminated. Termination decisions are now subject to the employee’s will and the employer’s ability to adapt the job position or to reassign the employee to a vacant, available role that aligns with their professional profile and is compatible with their new situation.
In short, the employer may only resort to this ground for contract termination when the implementation of such accommodations would represent a disproportionate burden, under the conditions detailed below.
This amendment also directly affects the dynamics and consequences of temporary and permanent disability benefits, including the transition between the two. For that reason, it has been necessary to amend Article 174 of the General Social Security Act (LGSS) to align its content with the reform introduced in the Workers’ Statute, on a transitional basis, until new regulations are adopted concerning the compatibility between employment and the receipt of permanent disability benefits.
