Can they fire me while I'm on sick leave? The quick answer to that question is yes. But if we delve deeper into the topic, we can clarify that there really are exceptions and something else to take into account.
For thoseIf you are on sick leave, are you going to take one, or have you been fired directly? and you don't know if it has been legal or not, this information that we have collected interests you. Go for it?
Legislation on dismissals while on leave
To answer the question, can they fire me while I am on sick leave?, it is best to turn to the law. And in this case it is Royal Decree Law 4/2020, of February 18, which establishes a change in the Workers' Statute itself. Specifically in the article 52.d where the following was stated:
«For lack of attendance at work, even justified but intermittent, that reaches twenty percent of the working days in two consecutive months, provided that the total lack of attendance in the previous twelve months reaches five percent of the working days, or twenty-five percent in four discontinuous months within a twelve-month period.
The previous paragraph is no longer valid and, therefore, A company cannot terminate a contract when a worker is temporarily disabled. What's more, Law 15/2022 establishes that no one can be discriminated against due to illness (or temporary disability, IT).
To dismiss this type of worker who is on sick leave, the company must prove that there are other reasons that justify it: disciplinary or objective.
The disciplinary reasons, according to the Workers' Statute itself, are:
Repeated and unjustified absences from attendance or punctuality at work.
Indiscipline or disobedience.
Verbal or physical offenses to the employer or colleagues.
Violation of contractual good faith and breach of trust.
Continued and voluntary decrease in normal work performance.
Habitual drunkenness or drug addiction.
Harassment based on racial or ethnic origin, religion, disability, age, sexual orientation, etc., as well as sexual or gender-based harassment of the employer or colleagues.
And for their part, the objective reasons are:
Worker ineptitude.
Lack of adaptation to the technical modifications that are incorporated into the workplace.
Economic, technical, organizational or production causes.
Therefore, the company would have to allege one of these reasons for the dismissal to be considered legal (and not void).
Can I be fired while I am on leave with a temporary contract?
All of the above can be applied to all types of contracts, temporary or indefinite. But there is a case in which you can be fired while on sick leave: with a temporary contract.
In these cases, When the end date of the contract arrives, it expires. It is not really a dismissal, but rather the period for which the worker was hired has already expired and that contract is not renewed.
Therefore, to the question: Can they fire me while I am on sick leave? If you have a temporary contract and it has an end date, the relationship can end (it is not a dismissal, it is that the time ends without renewal).
What happens if I get fired? Who pays me?
Imagine the situation that you are on sick leave and you are fired or your temporary contract ends. Now what? Are they still paying you or not?
Well, If the dismissal is considered appropriate, that is, it has been made based on the legislation, then the worker, even if he is on sick leave, will continue to be paid. Only, instead of the employer, it will be done by Social Security or the mutual insurance company, who will be responsible for the payment until you are registered.
If the dismissal is unfair, the employer can pay you compensation or reinstate you (they almost never choose this option). And in that case, the leave is assumed by Social Security or the mutual insurance company.
In the event that the dismissal is void, the company is obliged to reinstate the worker and here it will have to pay the outstanding salaries since the dismissal related to that leave (while it is Social Security that pays, then recovers it from the employer). .
Cases in which they cannot fire you while you are on sick leave
There are certain cases in which, because you are on sick leave, you cannot be fired. Which are? The following:
- When you are faced with maternity, paternity, breastfeeding or reduced working hours to care for children up to 12 years of age.
- Reduction of working hours or leave to care for family members.
What to do when dismissed?
When a person is on sick leave and receives a dismissal letter, the first thing he or she thinks is that he or she has come because he or she is on sick leave. Therefore, it is very important to follow the following steps:
- Sign the letter notification. The normal thing, if you are on sick leave, is that the dismissal letter is sent to your home and carried by a courier. You have to sign that you have received it. But put the phrase "Not compliant." In this way, you are already giving rise to being able to use your rights to challenge that dismissal.
- Review the dismissal letter. Next you have to analyze the letter. First, look at the reasons the company alleges. They will never be able to fire you for being on sick leave, because that would automatically be null and void, but they will give you other reasons and you have to find out if they are really acceptable or not.
- Claim. You have 20 calendar days to complain to the Mediation, Arbitration and Conciliation Service of your city or Autonomous Community to hold a meeting with the company and try to reach an agreement. If they do not do so, you can sue through the Social Court.
As you can see, when asked if they can fire me while I am on sick leave, the background must be taken into account to be able to give an affirmative or negative answer. What is clear is that, if it happens to you, it is best to put yourself in the hands of professionals who can determine if the dismissal is well done or you can go to court to have it declared inadmissible or void.