According to the Report on work absenteeism published on the InfoJobs portal, more than 2.4 million sick leave was recorded just due to Covid-19 infections between December 2021 and January 2022. Even for a justified reason, many employees they feared (and fear) losing their jobs while recovering from illness. But is it possible to be fired while on leave?
Work leave occurs when a worker cannot carry out their activities due to illness, whether 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.
We must make it clear that medical leave due to illness is not a cause for dismissal. This means that firing a person for being on medical leave cannot be motivated, but being on medical leave is not a way to protect their continuation in the company.
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 With it, the Government repealed the so-called ‘dismissal for justified medical leave’, which until then allowed companies to objectively dismiss those employees who accumulated a percentage of absences from work, whether it was for justified or unjustified reasons.
However, the simple fact of being on 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 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 convenient for any company 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 their income losses. However, the company will have to continue paying the contributions and, in some cases, assume other obligations. Therefore, it is common for some companies to dismiss the employee due to 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 lack of attendance at 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 document, the worker clearly and concretely explains the facts for which he makes the claim.
In the event that the conciliation hearing is unsuccessful, the worker can present the corresponding claim before the labor court. At this point, it will be the competent Judge who determines if 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.
It is clear that one of the first questions that the worker must ask himself when he is fired is to analyze whether the cause of his dismissal is fair or unfair.
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 void, in which case the worker will be reinstated to his job. The nullity depends on the type of sick leave in which the worker is.
If the worker is on temporary disability leave, how do you find out that he has been fired? The common thing is that the company complies with its obligation to send a dismissal letter to the worker by burofax. Therefore, even while on 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 General Treasury of Social Security with his mobile phone number. In this way, he will receive a notification via SMS if the company deregisters 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.
The company, therefore, must notify the worker of the dismissal in writing, clearly stating the reasons for the dismissal. In the same way, you will be given notice of at least 15 days in advance. The employee, for his part, may submit a conciliation form within a maximum period of 20 days.
Despite the fact that he has been fired for just cause, the worker will continue to receive the benefits that correspond to him until he can receive a medical discharge. In addition, the corresponding settlement must be paid and, in the event that it was not a justified dismissal, the corresponding compensation.
The company itself must continue contributing to Social Security until medical discharge. However, it will not be carried out in the same way in all cases, since it will depend on the nature of the loss.
