Mental Health as a Limitation of Free Dismissal

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    In 2021, the Second Chamber of the Supreme Court of Justice analyzed a case in which a worker alleged that her dismissal with employer responsibility had been discriminatory. This worker had a long-standing psychiatric condition that her employer was aware of, so she even had several disabilities for that reason. The immediate day after on which she returned to work, after her last disability, she was fired with employer responsibility, basing said termination on the free will of the employer.

    In resolving the case, the Second Chamber in its resolution 1377-2021, agreed with the worker stating: “This limitation has a sense of protection of fundamental rights, since this prevents the worker from being deprived of the normal source of income they have (such as work), when they are faced with health problems. “So, under this assumption of fact (health problems of the worker), the employer is limited in the power provided for in article 85 subsection d) of the Labor Code, since another normative source of equal rank -article 404 of the same normative body- and of subsequent approval, came to limit it, temporarily”.

    Depressive and anxiety disorders

    Recent studies have determined that Costa Rica has presented an increase in depressive and anxiety disorders. This increase has been reflected in labor relations, since it is common for workers to state that they have some ailment related to mental health issues.

    So, given this judicial precedent and the progressive increase in these cases, it is important that employers take precautions to avoid putting themselves in situations of risk. In the first place, it is important to point out that article 478 of the Labor Code establishes that it is an employer’s obligation to prove “The justification of the objectivity, rationality and proportionality of the measures or behaviors indicated as discriminatory in all claims related to discrimination”.

    In this sense, it is imperative that cases where it is known that the worker is affected by a mental health condition be handled based on objective, reasonable and good faith criteria; this will be done in order to eliminate any discriminatory spirit.

    On the other hand, it is suggested to document all internal processes and regulations of the company. This in order to have evidence that allows verifying the objectivity of the decisions regarding their collaborators.

    More carefully!

    Similarly, when the employer becomes aware of a personal condition of the worker that may lead to a discriminatory act, greater care must be taken when executing measures. For example: A termination right after the worker reports an illness or other condition may be difficult to defend. The same if applied immediately after a disability.

    In this sense, in the event that it is necessary to terminate an employment contract, it is recommended to consider dismissal by mutual agreement as an alternative as established in article 86, subsection c) of the Labor Code. Likewise, in the case of disciplinary dismissals, it is suggested to carry out a “case by case” analysis, since the absences could eventually find justification in the same health condition (for example: cases of poor performance).

    It is clear that mental health issues will have a greater role in the coming days. For this, it is necessary for employers to act and make decisions from the framework of good faith, always hand in hand with their legal advisors, to avoid taking false steps.

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