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Being on sick leave for medical reasons, even if long term, cannot in itself be a reason for dismissal under Spanish work legislation. In such a case it would be deemed unlawful. With the reform introduced by Royal Decree-Law 4/2020 of 18 February, Article 52.d) of the workers' statute was repealed, which included the following as grounds for dismissal: "For absences from work, even justified but intermittent, that amount to 20% of the working days in two consecutive months, provided that the total absences from work in the previous 12 months amount to 5% of the working days, or 25% in four discontinuous months within a period of 12 months."
In its place, in July last year, the Spanish government approved the reform of article 49.1.e of that same workers' statute to eliminate the recognition of the worker's permanent disability as an automatic cause for termination of the employment relationship.
However, this does not mean that a worker who is on sick leave is protected against dismissal for other reasons. In other words, the employer may still dismiss the employee while on sick leave, but not because he or she is on sick leave. So when and how can this be done without stepping on labour legislation? There are three types of dismissal: firstly, objective dismissal, which is one of the most common reasons and refers to economic, technical, organisational or production reasons.
Secondly, the type known as disciplinary dismissal can also terminate the employment relationship while the person is on sick leave. Disciplinary dismissal occurs when the employee commits serious misconduct (repeated and unjustified absence, indiscipline or disobedience), verbal or physical offences, intentional underperformance, or any breach of contractual good faith such as engaging in incompatible activities or activities that delay their recovery and return to work.
Lastly there is the type of dismissal that is due to the closure of the company or because the contract is ending as, if the sick leave coincides with the end of a temporary contract, such a contract cannot be renewed.
Therefore, if the dismissal takes place while on sick leave and is for the aforementioned, justifiable reasons, the worker will not receive compensation and, as an unemployed person, will be able to collect unemployment benefits for the time corresponding to the period for which contributions have been paid.
However, if there are doubts about the reasons for dismissal, it is not justified and is therefore considered to be unjustified, the worker may go to court to have the dismissal decision annulled.
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