Contents
- Can you work on medical leave?
- When can the dismissal for working on medical leave occur?
- What activities can justify a dismissal?
- What evidence does the company need?
- A real case: accused of working for competition
- What does the case law say?
- What to do if you get fired during a medical leave?
- Frequently asked questions
- Conclusions
Can you work on medical leave?
Dismissal for working on medical leave is one of the issues that gives rise to the most doubts both between workers and between companies. There is a belief that any activity carried out during a temporary incapacity may justify a disciplinary dismissal. However, that statement was not correct.
Temporary incapacity is intended to allow the worker to recover when an illness or injury prevents him from carrying out his normal work. This does not mean that the person must remain at home or that he or she is prohibited from carrying out any activity.
What is really relevant is to determine whether the conduct done is incompatible with the recovery process, evidence that the worker can perform his work or a violation of the good faith contract.
Therefore, each case should be analysed individually in the light of factors such as:
- The pathology that causes medical discharge.
- The worker's functional limitations.
- The activity carried out.
- The intensity and frequency of such activity.
- The existence of damage to recovery.
Consequently, not all work or activity during a temporary disability justifies disciplinary dismissal. It will be necessary to assess the specific circumstances of the case and the evidence available to the company.
If you have doubts about your specific situation, it is recommended consult with a labour lawyer before making any decision.
When can the dismissal for working on medical leave occur?
Spanish labour law does not provide for an absolute prohibition of activities during medical leave. However, the employer may agree to a disciplinary dismissal where the worker's conduct constitutes a serious and guilty breach of his work obligations.
In general terms, dismissal may be considered appropriate if any of these circumstances are in place:
The activity shows the ability to work
If the activity carried out shows that the worker can perform the functions for which he is discharged, the company may claim that the temporary incapacity is not justified.
An isolated activity is not enough. It will be necessary to establish that such conduct is incompatible with the recognized medical limitations.
Activity delays or harms recovery
There may also be cause for dismissal when the worker carries out activities that make it difficult to recover or fail to comply with medical recommendations.
For example, a person who is discharged from a lumbar injury that makes intense physical efforts may be compromising his healing process.
There is a violation of good contractual faith
Article 54 of the Workers & apos; Statute makes it possible to punish, in a disciplinary manner, conduct which is a violation of good contractual faith.
This is why if the worker takes advantage of the medical leave to carry out a work activity incompatible with his situation or acts fraudulently in front of the company, the dismissal may be declared appropriate.
What activities can justify a dismissal while on medical leave?
Not all activities carried out during a temporary disability constitute a failure to work. The determinant will be to check whether such conduct is incompatible with the cause of medical leave or evidence of conduct contrary to contractual good faith.
Then we analyze the most common assumptions.
Working for another company
One of the most frequent cases is that of a worker who, while on medical leave, provides services for another company.
This situation does not automatically imply that the dismissal is appropriate, but it may be a relevant indication. It shall be necessary to assess:
- If the functions developed are compatible with the pathology.
- If there is a physical or mental effort similar to that of the usual position.
- If the activity can delay recovery.
- If the worker is obtaining an economic benefit incompatible with the temporary disability situation.
When the new work shows that the employee retains the capacity to perform tasks similar to those performed in his or her company, the courts often consider that there is a serious breach. In these cases, in addition to dismissal, other economic consequences, such as claim for amounts unduly received during the period of discharge.
It is important to note that the physical proximity to a competing company —For example, to be usually on a ship or premises adjacent to that of a competitor— it doesn't, on its own, amount to being working for him. The company must prove that there is a real service provision, not a simple location coincidence or a personal activity outside any employment relationship.
Self-employment
Dismissal may also occur when the worker carries out an activity as an autonomous person during the discharge.
However, the assessment will be identical: it is not enough to prove that an economic activity exists, but it must be shown that it is incompatible with temporary incapacity or that it is a fraud.
Intensive physical activities
Sports activities or physical efforts can justify dismissal only when they contradict the limitations resulting from the fall.
For example:
- Raise large weights during a lumbar injury discharge.
- Participate in sports competitions while you are off due to muscle problems.
- To perform construction work during an incapacity for joint injuries.
On the other hand, walking, rehabilitation exercises or a physical activity authorized by the doctor will not normally be sufficient cause to fire the worker.
Travel during medical leave
Travel is also not prohibited by itself.
The important thing will be to determine whether the displacement:
- makes recovery difficult,
- does not comply with medical indications,
- prevents the use of reviews or controls,
- or shows a capacity incompatible with temporary disability.
In fact, there are numerous court decisions that consider a medical leave perfectly compatible with certain trips when they do not harm the recovery process.
What evidence does the company need to justify the dismissal?
The burden of proving the facts lies with the company.
Suspects or rumors are not enough. The employer must provide sufficient evidence to show that the worker's conduct constitutes a serious breach.
Among the most common tests are:
- Reports from private detectives.
- Witnesses.
- Photographs or videos obtained legally.
- Publications on social networks.
- Medical documentation.
- Expert reports.
It is important to recall that the evidence must have been obtained in accordance with the fundamental rights of the worker, especially his right to privacy and data protection.
If the evidence has been obtained unlawfully, it may be declared null and void to justify dismissal.
It should be borne in mind that the test can also play in favour of the worker. In the face of allegations based on videos, photographs or witnesses provided by the company, the worker can present his own evidence —including own recordings, third-party testimony or documentation— to demonstrate that the activity observed did not constitute a job benefit, but rather a personal, leisure, or in conformity with its situation of departure.
A real case: accused of working for competition
In our office we have recently managed a case that illustrates well all of the above. A client was dismissed by letter of disciplinary dismissal, in which the company accused him of working for a competing company while on medical leave, claiming that he had been seen on a ship next to that of the competitor.
The reality, however, was different: the ship in question belonged to a worker's acquaintance and was used as a leisure space, where he cared for chickens, kept a small garden and organized barbecues with the owner and his family. None of this was related to any work activity or to the said competition company.
We provided as evidence personal videos of the worker that proved the true use of space, along with witnesses who confirmed this version of the facts. In view of the soundness of the test, the company chose to recognize the of dismissal in an agreement reached before reaching a trial, undertaking to pay compensation of EUR 8,500 net.
In the course of the negotiation, it was also discussed whether the amounts already received by the worker in another job or as an unemployment benefit should be deducted from the compensation, which is often raised in such agreements and which should be taken into account when negotiating the final amount.
This case confirms a central idea of this article: appearances are not enough. The company must demonstrate, with solid evidence, that there is a real work activity incompatible with medical leave. The proximity to a competitor, an isolated photograph or a hasty interpretation of the facts alone are not sufficient evidence of a serious breach.
What does the case law say?
The case law of the Supreme Court has reiterated that the mere fact of carrying out an activity during a medical leave does not automatically justify a disciplinary dismissal.
The courts analyse each case in the light of such aspects as:
- The worker's disease or injury.
- The usual functions of the post.
- The nature of the activity performed.
- The duration and intensity of this activity.
- The existence of an injury to recovery.
As a result, judgements may be found which consider the dismissal appropriate and others which declare it inappropriate —or even null, as in the case that recently we got before the High Court of Justice of Catalonia— in situations that seem similar, precisely because the specific circumstances of each case are different.
The key always lies in determining whether the conduct evidence a recovery incompatible with medical leave or a breach of the good faith contract.
What to do if you get fired during a medical leave?
If you receive a letter of dismissal while in a situation of temporary disability, it is recommended to act quickly.
First, it carefully reviews the facts that the company attributes as a cause of dismissal and retains all related documentation.
It is also advisable request specialized advice to assess whether there are grounds for challenging the business decision.
He recalled that, as a general rule, the time limit for challenging a dismissal was 20 working days, and that time should not be allowed to pass.
If the court finds that the company has not sufficiently substantiated the facts or that they do not constitute a serious breach, the dismissal may be declared inappropriate or, in certain cases, even null and void.
Frequently asked questions
Can you just fire me for being on medical leave?
No. Medical leave alone is not a valid cause of dismissal. The company must provide a legal and sufficient basis.
Can I get out of the house while I'm off?
Yeah. Temporary incapacity does not require a stay at home unless there is a specific medical indication.
Is it legal to travel during a medical leave?
It will depend on the circumstances. If the trip does not harm the recovery and does not comply with medical recommendations, there should be no problem.
Can a company hire a detective?
Yeah. The recruitment of private detectives is legal provided that their action respects the existing regulations and fundamental rights of the worker.
Can social networks be used as evidence?
Yes, provided that the content has been obtained in a lawful manner and is relevant to the facts discussed.
Does working during a medical leave always mean a proper dismissal?
No. It will be necessary to analyse whether the activity carried out demonstrates work capacity, delays recovery or involves a breach of the good faith contract.
In what court should I claim if the company is based in another city?
The territorial competence in labour matters is generally determined by the place where the services are provided, not by the company's registered office. Thus, a worker who provides services in Barcelona will be able to sue the Barcelona Social Court even if the company is based in another province.
Can compensation be negotiated before trial?
Yeah. It is common to reach pre-trial agreements in which the company recognizes the inorigin of dismissal and compensation is made, which may be affected by the amounts already received by the worker in another job or as unemployment benefit during the proceedings.
Conclusion
Dismissal for work on medical leave is not automatic and is not only dependent on the worker having carried out a certain activity. What is really important is to assess whether such conduct is incompatible with temporary incapacity, makes recovery difficult or constitutes a serious breach of labour obligations.
Each case should be analysed individually, taking into account the medical limitations, the activity developed and the evidence provided by the company. Therefore, both workers and employers should act with caution and, in any case, seeking specialized legal advice.
