We at Belzuz Abogados, S.L.P., as specialist employment lawyers, analyse the judgement of the High Court of Justice of the Basque Country (Labour Chamber, Section 1), dated 30 June 2026, No. 1563/2026, rec. 725/2026, which examines the potential invalidity of including an employee in a collective redundancy on the grounds that they were on temporary incapacity (IT).
The dispute stems from a collective redundancy initiated by a company with a workforce of 35 employees, which ultimately affected 10 staff members.
The company had begun to assess the need to carry out a collective redundancy from January 2025. At that time, and prior to the formal commencement of the procedure, an initial list of potentially affected workers was drawn up, amongst whom was the claimant.
Subsequently, on 3 February 2025, the worker commenced a period of temporary incapacity arising from common contingencies.
The formal collective redundancy procedure began in March 2025 and culminated in the individual notification of the terminations on 15 April 2025. Of the 10 employees ultimately affected, four were on temporary incapacity leave on the effective date of their respective redundancies.
The claimant challenged his dismissal by seeking a declaration that it was null and void, arguing, in essence, that his inclusion amongst those affected by the collective redundancy had been determined by his status as a person on temporary incapacity leave.
Specifically, he alleged a breach of his fundamental right not to be discriminated against on the grounds of illness or health condition, as well as the existence of unjustified unequal treatment. He also maintained that he had commenced his temporary incapacity leave on 3 February 2025, before the final list of employees to be affected by the collective redundancy had been drawn up; a circumstance which, in his view, demonstrated the existence of a discriminatory dismissal on the grounds of illness.
On behalf of Belzuz Abogados, S.L.P., as employment lawyers with regular experience in this type of proceeding, we have analysed the dispute:
One of the central aspects of the dispute was to determine whether the selection of the workers affected by the collective redundancy had been based on objective criteria and was free from any discriminatory circumstances.
In this regard, the court of first instance considered it proven that the company had taken into account future production needs and the added value contributed by the various workers, considering, amongst other factors, their versatility and technical and productive profile.
In particular, the first-instance judgement noted that the views of the heads of the various departments had been taken into account, assessing future production needs and seeking to retain on the workforce those workers who could provide greater added value from a technical and productive perspective. Furthermore, it was deemed to have been established that the redundancies were in line with existing production needs and the versatility of the staff remaining with the company.
The High Court of Justice of the Basque Country confirms this reasoning and considers it significant that the criteria used to determine which workers were affected did not conceal any arbitrary or discriminatory decisions.
In this regard, the Chamber emphasises that the company had begun work on identifying those potentially affected as early as the beginning of 2025, even before the formal initiation of the collective redundancy procedure in March. The Human Resources department asked the heads of the various production areas to identify workers likely to be included, and an initial shortlist was drawn up by department; this was subsequently cross-checked and discussed with the various departments and the workers’ legal representatives.
Therefore, in the Court’s view, the existence of planning prior to the formal commencement of the procedure does not, in itself, constitute evidence of discrimination, provided that the criteria used are objective and do not serve an unlawful purpose. Furthermore, it attaches importance to the chronological sequence of events: first, the claimant was selected as a potential affected employee and, subsequently, was included on the lists of those affected by the procedure.
Furthermore, the High Court of Justice also noted that, during the period from December 2024 to March 2025 (immediately prior to the commencement of the redundancy scheme), there had been a significant increase in the number of workers on temporary incapacity leave, and therefore held that this circumstance led “to a logical increase in the proportion of workers on short-term sick leave affected by the redundancy scheme, which corresponds to a general increase in the number of workers on the company’s workforce in that situation”.
As regards the question of whether their temporary incapacity might render the redundancies null and void, the High Court established, in summary, the following criteria:
- The company has discretion to determine which employees are affected by the collective redundancy, provided that the selection is based on objective criteria and respects statutory preferences, and must not be influenced by discriminatory circumstances such as illness or state of health.
- In the case under consideration, the High Court considers that temporary incapacity was not the determining criterion for the selection, as there were employees on temporary incapacity who were not included in the redundancy and, conversely, employees who were not on temporary incapacity who were affected. Consequently, as there was insufficient evidence of discrimination, the Court ruled out the nullity of the dismissal. On the basis of these arguments, the Court dismissed the claim that the dismissal was null and void, confirming the validity of the procedure followed by the defendant company—including the consultation period and the selection criteria—and rejecting the allegation of discrimination on the grounds of temporary incapacity.
The judgement under consideration offers a conclusion of particular practical relevance: the fact that a worker’s temporary incapacity coincides with their inclusion in a collective redundancy does not, in itself, render the decision to terminate employment discriminatory.
What is truly decisive is establishing what criteria were used to select the affected workers and whether those criteria effectively respond to the alleged business needs or, conversely, conceal a decision linked to their state of health.
At Belzuz Abogados, S.L.P., as employment lawyers specialising in the termination and dismissal of workers on temporary incapacity leave, we will continue to monitor rulings such as this one, which may introduce or clarify new criteria to be taken into account when assessing this type of termination of employment contracts.