Table of Contents
- Intro
- Can you get fired on medical leave?
- What if the company does not justify dismissal: invalidity
- Compensation for fundamental rights violations
- Real case
- Summary: how the dismissal is rated and what consequences
- What to do if you get fired while you're off
- Frequently asked questions
- Conclusion
1. Introduction
Getting a letter of dismissal is already hard. Receive it when you're on medical leave, it is even more. The question that is asked almost everyone is the same: can they do it? The short answer is yes, but the company is played a lot if it does not very well justify the reason. When it does not, dismissal may be declared null and void not only requires the worker to be readmitted; it may also open the door to compensation for violation of fundamental rights. In this article we focus on that: what economic consequences it has for the company and what the worker can claim.
2. Can you get fired on medical leave?
Yeah. In Spain there is no general prohibition on the dismissal of a worker in a situation of temporary incapacity. But that does not mean that the company has its hands free: it must very well base the causes of the dismissal and show them if the worker challenges it. What matters is not that it coincides with a decrease, but what was the real reason for the dismissal.
If you want to understand in depth when the discharge turns the dismissal into zero and how the burden of proof works, we explain it in our article Dismissed during medical leave: is it null? What the law really says. And if the dismissal takes place because the company claims that you were working at work, the situation is different and we analyze it in I'm fired for working on medical leave..
3. What if the company does not justify dismissal: invalidity
If the company fails to justify the causes of the dismissal and the court finds that what is behind is discrimination on the basis of illness or health condition, the judge shall declare the dismissal nil. Law 15 / 2022, which is integral to equal treatment and non-discrimination, expressly included disease or health status among the prohibited causes of discrimination.
The consequences of nullity are very different from those of inappropriate dismissal. As a general rule (Article 55 of the Staff Regulations), the undertaking is obliged to:
- Readmit workers in their jobs, under the same conditions.
- To pay processing wages, that is, the wages that are no longer paid from dismissal to readmission.
- And, when you claim, respond for the compensation for violation of fundamental rightsI'll see you later.
In nullity there is no option of «pay and fire»:: the company cannot replace readmission with compensation, which is the case in inappropriate dismissal. You can see the differences between the different forms of dismissal in our guide Dismissals in Spain: what does the law say?.
4. Compensation for fundamental rights violations
Where a dismissal is discriminatory, not only is a labour rule violated: a fundamental right is violated, in this case the right to right to equality and non-discrimination under article 14 of the Spanish Constitution. For this reason, in addition to readmission and processing wages, the worker may claim additional compensation for the damage resulting from this violation, and it is the judge himself who must rule on the amount of the damage.
Several references are used to quantify the damage:
- The Law 15 / 2022of 12 July on equal treatment and non-discrimination, to which Article 48 We always come to our demands, which provides for the reparation of the damage caused by discriminatory conduct.
- The Law on Offences and Penalties in the Social Order (LISOS)the scale of sanctions is often used as a guiding criterion for setting the amount.
And how much can you claim? There is no fixed figure, and each case depends on its circumstances (severity of damage, duration of injury, evidence provided). What is seen is a clear trend: the courts are beginning to assess these awards in significant amounts, and in the practice of the release, the amounts around the EUR 25,000. It is a guiding reference, not a guarantee: in each procedure it will be the judge who decides.
This is why a company should think about it very well before firing a worker who is on leave: the cost of a declared dismissal is much higher than that of a misdemeanor.
5. Real case
In the video, our lawyer sums up the key in a few words: they can fire you while you're off, but the company will have to very well justify the causes. If it does not, the judge shall understand that it is a null dismissal, with an obligation to readmit and pay the processing wages. In addition, when the claim is made for a violation of fundamental rights, the judge will have to rule on the amount of compensation.
If you want to see a real example of a winning case, you can read how We got the High Court of Justice of Catalonia to declare the dismissal of a worker in medical leave null and void..
6. Summary: how the dismissal is rated and what consequences
| Qualification | When it's given | Consequences for the company |
|---|---|---|
| Nil dismissal | The real cause is discriminatory (disease or health condition) or violates fundamental rights | Readmission, processing wages and compensation for fundamental rights violations |
| Unappropriate dismissal | There is no valid cause, but there is no discrimination | Readmission or legal compensation, at the choice of the company |
| Dismissed | The company attests to a real and sufficient cause, outside the worker's health | No compensation |
7. What to do if you get fired while you're off
- Don't sign anything without advice.neither a final nor a document of conformity.
- Save the evidence.: the letter of dismissal, the parts of leave, mail and messages with the company and everything that relates the dismissal to your medical situation.
- Respect the deadlineYou only have 20 working days since the dismissal to challenge it. It's an expiry period.
- He goes to a labor lawyer. to assess whether it is appropriate to claim invalidity and compensation for violation of fundamental rights. You can check our area of redundancies.
8. Frequently asked questions
Can I get fired on medical leave?
Yes, but the company must very well justify the causes. If it does not, the dismissal may be declared null and void.
What if the dismissal is null and void?
The company must readmit the worker, pay him the processing wages and, when claimed and credited, be liable for the compensation for violation of fundamental rights.
How much compensation can be charged for a zero dismissal?
There is no fixed figure: it is fixed by the judge on a case-by-case basis. The courts are beginning to estimate significant amounts, and in practice amounts of around EUR 25,000 have been recognized for the violation of the right to equality.
How much time do I have to claim?
20 working days from the date of dismissal. After that period, the action is lost.
Do you keep medical leave if I get fired?
The termination of the contract, but not necessarily the temporary disability benefit, which is generally still paid for the duration of the leave. You should check your specific case with a lawyer.
9. Conclusion
Dismissing a worker who is on medical leave is not prohibited, but it is a high-risk decision for the company: if he cannot justify the reason with solidity, he is exposed to no dismissal, with readmission, processing wages and compensation for violation of fundamental rights. If you have been fired on leave, do not let the deadline pass: Leynver Lawyers We study your case and value the best way to claim.
This article is of an informative nature and does not constitute legal advice. The qualification of dismissal and the amount of compensation depend on the circumstances of each case.
