In accordance with the Workers' Statute (Estatuto de los Trabajadores, ET), the employment contract may be terminated due to the employee's inability to work, either known or arising after the employee's actual employment with the company. Inaptitude existing prior to the completion of a probationary period may not be alleged after such completion.
Current labor legislation allows companies to terminate the employment relationship with an employee when there are objective causes established in the Workers’ Statute (ET). One of these causes is the supervening ineptitude the loss of the necessary capacity to correctly perform the job.
If this is your case, it is important that you know the criteria that justify a dismissal due to supervening unfitness, the requirements that must be met and the rights of the worker in these cases, including the compensation and the steps to follow to correctly communicate the termination of the contract.
Definition and requirements for dismissal due to supervening unfitness
Article 52.a) of the Labor Code establishes that the employment contract may be terminated due to known or supervening unfitness of the employee after his or her effective placement in the company.
For ineptitude to be considered an objective cause for dismissal, the following requirements must be met:
- Supervening: the company must have become aware of the ineptitude after the hiring and not before the end of the probationary period.
- Permanent: it must not be a temporary or one-off situation but must continuously affect the employees’ performance.
- Imputable to the worker: the ineptitude may be due to physical or psychological causes or due to lack of updating of knowledge.
- Independent of the employees’ will: it must not be a deliberate reduction in performance.
- Of sufficient entity: it must affect the essential tasks of the position, not only accessory or complementary functions.
- Generalized: the lack of aptitude must have an impact on the whole of the work entrusted, not only on some of its functions.
Dismissal will only be valid if the company has previously tried to adapt the job or relocate the employee to another position compatible with his or her abilities.
Causes that can motivate a dismissal due to supervening ineptitude
The supervening ineptitude may derive from various circumstances, among which are included:
- Lack of knowledge or updating required to properly perform the job.
- Loss of essential skills, such as speed, concentration or perception.
- Physical or psychological problems that prevent the correct performance of job functions (art. 48.2 ET).
- Loss of an indispensable requirement for the performance of the job, such as a driver’s license if driving is essential for the job.
Procedure for communicating the dismissal
For the objective dismissal to be valid, the company must comply with the following steps:
- Written notice (art. 53.1.a ET): the company must provide the employee with a letter of dismissal detailing the cause of termination.
- 15 days’ notice: the employee must be informed at least 15 days in advance before his or her effective departure from the company.
- Payment of compensation: the company must pay compensation equivalent to 20 days’ salary per year worked, with a maximum of 12 monthly payments.
- Additional documentation: if the employee does not agree with the dismissal, he/she may challenge the decision within 20 working days (art. 59 ET).
A dismissal for supervening unfitness without having attempted reasonable adjustments to the position may be declared null and void by the courts (SC Ruling 94/2025 of February 4, 2025).
Recent Supreme Court decision on supervening unfitness
A worker who suffered from cancer and was on temporary disability for two years was dismissed after being declared “unfit” by his company’s prevention service. The company, without evaluating alternatives or adapting the position, proceeded to dismiss him on the grounds of supervening unfitness.
The SC Decision 94/2025 of February 4, 2025 confirmed the nullity of the dismissal, emphasizing that the company had not tried to adapt the job before terminating the contract.
The consequences of the ruling for companies are the obligation to reinstate the worker, paying the processing wages. Also, the reinforcement of protection against dismissals of workers with serious illnesses. Greater demand for companies in the justification of supervening ineptitude, and the obligation to make reasonable adjustments before the termination of the contract.
The Supreme Court stresses the importance of making reasonable adjustments before proceeding with the termination of the contract.
Dismissal due to supervening ineptitude is an objective cause for termination of the contract that must be applied with caution and in strict compliance with the regulations, so we recommend:
- Carry out a medical and documentary assessment before making the decision.
- Explore options for adapting the position before proceeding with the termination.
- Ensure that ineptitude is objective, permanent and of sufficient importance.
- Properly draft the dismissal letter to avoid future challenges
Dismissal due to ineptitude arising from a temporary incapacity
When a worker has remained in temporary incapacity (TI) for a prolonged period and returns to his or her position of work, different scenarios may occur:
- Medical discharge without restrictions: The worker returns with full capacity to perform his or her duties.
- Medical discharge with restrictions: You may be declared “fit with limitations”, which may require adjustments in your job.
- Unfit for their job: If the worker is declared “unfit”, the company must assess the viability of their continuity.
What if the worker is declared permanently disabled?
- If the permanent disability is total, absolute or severe disability, the company may terminate the contract without compensation (art. 49.1.e ET).
- In the case of medical discharge after sick leave, the company must subject the worker to a medical evaluation to determine if they can continue in their position.
Medical certificate. The worker must have a report from the occupational health service
that certifies whether they are fit, fit with restrictions, or unfit for their position. In the latter case, the company must follow these steps before proceeding with their dismissal:
Assessment of reasonable adjustments:
- Adaptation of the workplace so that the worker can continue to perform their duties.
- Modification of tasks that do not affect the productivity of the company.
- Assessment of relocation to another position within the company.
Termination of the contract due to supervening ineptitude:
If, after analyzing all the options, the worker is still unable to perform his or her job, the company may terminate his or her contract due to supervening ineptitude, provided that:
- The impossibility of making reasonable adjustments is accepted.
- There is no suitable vacancy in the company.
- The loss of fitness is justified with medical and occupational risk prevention reports.
- The worker is compensated in accordance with article 53.1.b SW with 20 days’ salary per year worked, with a maximum of 12 monthly payments.
For more information, please contact Labour Counselling
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