According to the Report on Work Absenteeism published on the InfoJobs portal, more than 2.4 million sick leaves were recorded due to Covid-19 infections alone between December 2021 and January 2022. Even with just cause, many employees they feared (and fear) losing their jobs while recovering from illness. But is it possible to be fired while on leave?
Sick leave occurs when a worker is unable to perform their activities due to illness, either physical or mental. Likewise, an employee can request leave for reasons that have to do with maternity/paternity. In any case, it is a totally justified reason for which the worker cannot be fired.
In this sense, it is worth remembering the reform introduced by Royal Decree-Law 4/2020, of February 18. With it, the Government repealed the so-called 'dismissal for justified medical leaves', which until then allowed companies to fire those employees who accumulated a percentage of work absences, whether it was for justified or unjustified reasons.
However, the simple fact of being on sick leave does not protect the worker from any other type of dismissal. In other words, an employee can be fired while on leave as long as the reason for the dismissal is not the leave itself. Thus, an employee on medical leave may receive, for example, a disciplinary dismissal.
Likewise, the company may apply a dismissal for objective reasons to the employee who is on sick leave for medical reasons. Such is the case of a company that, after a loss, decides to restructure the workforce by eliminating the department to which an employee on medical leave belongs. Being in this condition does not protect the worker from being fired for objective reasons.
It is clear that there are reasons that justify the dismissal of an employee who is on medical leave. But it is also true that being on medical leave is not a reason to fire any worker. However, the reality is that it is not in any company's interest to have an employee in this situation for a long time.
While the medical leave lasts, the employee will receive a daily subsidy from Social Security to compensate for the loss of their income. However, the company must continue to pay the contributions and, in some cases, assume other obligations. Therefore, it is common for some companies to fire the employee for medical leave and disguise the cause of the dismissal with some false reason.
What can an employee do who feels (and knows) that they have been fired for not attending work due to medical leave? In these cases, it is possible to challenge the dismissal, a process that begins with the presentation of a conciliation ballot. With this letter, the worker clearly and specifically explains the facts for which he makes the claim.
In the event that the conciliation hearing is unsuccessful, the worker can present the corresponding lawsuit before the social court. At this point, it will be the competent Judge who determines whether the dismissal is unfair or not. Of course, throughout the process it is essential to have the advice of a lawyer specializing in labor law.
In the event that the court determines that the dismissal was unfair, the company must compensate the worker with 33 days of salary per year worked. Those employees with employment contracts signed before February 12, 2012 are entitled to a higher compensation: 45 days per year worked. For its part, the company will not be obliged to reinstate the worker.
On certain occasions, the court could classify the dismissal as null, in which case the worker will be readmitted to his job. The nullity depends on the type of sick leave in which the worker is.
How is the dismissal notified to the worker who is on medical leave?
If the worker is on temporary disability leave, how does he find out that he has been fired? The common thing is that the company fulfills its obligation to send a letter of dismissal to the worker through burofax. Therefore, even while on sick leave, it is necessary to stay informed and collect any notice that comes from the company.
In addition, the employee does well to provide the Social Security General Treasury with his or her mobile phone number. In this way, he will receive a notification via SMS if the company withdraws him from Social Security without prior notice. It must always be remembered that being on temporary disability leave does not protect the worker from receiving a dismissal letter.
