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In this post we are going to clarify if, legally, being on medical leave you can be fired. And we explain how to act if your company fires you while you are on medical leave.
As specialists in Labor Law, we will address the two most common scenarios: long-term leave and shorter and justified absences due to temporary disability.
Dismissal due to long-term sick leave
Are layoffs legal while on leave? Yes, indeed, although many think not. An employer can issue a dismissal while the worker is on medical leave, but not for that reason. The law guarantees the right to health, and, therefore, dismissal for being on leave may be void because it violates one of the fundamental rights of employees. However, unfortunately, this is an all too frequent reality in cases of long-term leave, although it also occurs in shorter justified medical leave.
Therefore, the reason cannot be solely that the person is in the process of temporary disability; it would have to be another that would validate the termination, that is, a justified cause. But if it is not so, the dismissal would be considered void. Although, for this to be possible, you always have to claim, as we will tell you in detail in this article. Because only a judge can dictate the annulment of a dismissal.
Why does the company act like this?
It is a cost for companies that their staff is on leave. They must continue paying the Social Security contribution and, on occasions, hire a third party to carry out their tasks, among other expenses such as their own salary for the first days of sick leave.
Consequently, some employers decide to do without the person affected in these circumstances in order to save. Or they force through pressure to take the medical discharge.
Can I be fired while on leave due to an accident at work?
The answer to this question is also yes. Dismissal while on leave due to a work accident is governed by the same rules that we have just seen, that is, there are no specific differences because it is a work accident. It would also be qualified as null if the only pretext is to be going through a period of temporary disability.
Let us remember that the work accident is one of the four contingencies of medical leave and also of permanent disability. The remaining three are: common disease, non-work accident and occupational disease.
Dismissal while on leave with a temporary or indefinite contract
The type of contract signed by the employee who has been fired for the reason we are analyzing is not relevant here either. There is no specific regulation for a dismissal while on leave with a temporary contract or for a dismissal while on leave with an indefinite contract. We would still be faced with a possible claim for nullity of the dismissal.
Consequences of null dismissal in periods of leave
Reinstatement
You have already seen that being on leave they can fire you. But this has consequences. The first of these, if the courts finally consider that the dismissal is void, is that the employer will have the obligation, unless another type of agreement is negotiated, to reinstate the worker in his position. Within three days and without changing the conditions of the employment contract!
Processing wages
Continuing with the dismissals while on leave that end up being void with relocation, there is another consequence: an economic amount that the dismissed employee has to collect as processing wages. Said salaries are those that have not been received from the date of dismissal until reinstatement, due to not having been active.
But, what happens if during that time you have been collecting unemployment benefit ? Do not forget that the dismissal is effective even if you proceed to claim later. In this case, you will be entitled to the processing wages, but the employer will subtract from them what you have received as unemployment, and will return it to the SEPE.
Additional compensation for damages
On some occasions, it is possible to obtain compensation while returning to work, but it is not easy unless a lawyer specializing in Labor Law fights for it and presents this request previously in the mediation, arbitration and conciliation body ( which we will talk about in the following points), and it is not always obtained. Again, it is the judge who decides. In any case, this compensation can be claimed if it is shown that the fact has caused serious damages.
And if the company does not want to reinstate me or I refuse?
When the employer does not accept the reinstatement, or does so but under conditions other than the original ones, what is called “regular execution of the ruling” can be requested. You have a period of 20 days to demand a return to work once three days have passed since the date set for reinstatement.
After that, the parties are summoned to a meeting called “incident of non-readmission”. Once there, the employer will be required to comply with his obligation within the following five days.
But suppose that the reality is that you are the one who does not want to return to the company. If that is your preference, you can bypass readmission but you will lose the chargeprocessing wages.
You can be fired while on leave, but who pays you?
Regardless of whether the dismissal is claimed, an aspect that we will continue to expand on later, you must be clear that you will only continue to receive your medical leave benefit if you have generated unemployment. Otherwise, you will receive a maximum of €480, that is, 80% of the IPREM (Public Indicator of Multiple Effects Income, which in 2023 amounts to €600 per month). But this regulation has some nuances:
Common illness or non-work accident
If you have accrued contributory unemployment, the person in charge of paying your monthly payments will be Social Security -if the contingency is a non-work accident or common illness-. And you will continue quoting. Although do not forget that your unemployment will continue to be consumed, and that the amount of the loss will be reduced to what corresponds to you in unemployment.
Work accident or occupational disease
When the origin of the medical leave situation is an accident at work or an occupational disease, the mutual will be responsible for the payment. And there are two advantages: unemployment does not run and the amount remains the same. Although, there is also bad news, because in this scenario.
What if my unemployment runs out?
At that time, you will stop quoting. But Social Security will begin to pay you another amount, at most and until you obtain a medical discharge, the aforementioned €480.
Dismissal for justified short-term medical leave
Analyzing dismissals while on leave due to illness or accident leads us to another very important issue, which we already pointed out in the introduction to this text: when absences due to temporary disability do not constitute long-term leave and, moreover, are duly justified. In this sense, Royal Decree-Law 4/2020, of February 18, repealed letter d) of article 52 of the Workers’ Statute. In this way, a possibility that existed before was eliminated: firing someone for being off work for less than 20 days. The requirement for the company to be able to do so was that absences reached a certain percentage of their working hours in a given period. Even if these were justified correctly!
The massive layoffs caused by this fragment of the law made it necessary to correct the text regulating absences due to short-term temporary disability. Thanks to the repeal, a company can now legally fire a worker for a justified medical leave of less than 20 days.
Another possibility: Dismissal for traveling while on leave
The answer to whether you can travel while on medical leave cannot be missing from this analysis. In this regard, the essential thing is that your GP authorizes it. If it does, you shouldn’t have any problem with your company (nor with the INSS or the mutual).
And if the employer fires you for that reason, you will also have the possibility to claim and request a null dismissal.
What do I have to do if they kick me out while on leave?
Even if they are losing, as being on sick leave they can fire you, if the company managers decide to send you a dismissal letter during your temporary disability, the key is that you sign the papers that they give you as NOT COMPLIANT, to leave a path open to claim
The first step to make a claim is to file a conciliation ballot. If you ask yourself “where do I have to go if I am fired while on leave”, the correct place is to file a lawsuit with SMAC. Although a lawyer specializing in Labor Law can take care of this, without the need for you to manage it directly. In fact, it can be processed electronically.
The next step is to negotiate an agreement with the company that avoids a judicial process, and this is what is attempted in the conciliation act, an appointment in court that both parties should not miss but it is not a trial. In the act itself, nothing is discussed, only a record is drawn up after what was previously discussed between the lawyers of each party.
What do I have to do if they kick me out while on leave? the final phase
Finally, if consensus is not reached, a lawsuit can be filed. But it is not possible to sue a company for a dismissal while on leave due to a work accident or other cause without first going through the Mediation, Arbitration and Conciliation Service.
They can fire you while on leave, but take advice
Conclusion
Can I be fired while on leave due to an accident at work? Where do I have to go if I am fired while on leave? In this post we have resolved these and other questions, but if what you need is personalized professional advice, we recommend that you find out about our Layoff service, which includes a free first visit.