Can I be dismissed while on sick leave? What to do if it happens to you

Yes, you can be dismissed while on sick leave, but there are important nuances, as the reason for dismissal cannot be the sick leave or the illness itself. If you are dismissed while on sick leave, it may be considered an unfair or null and void dismissal. In this article, the team at G. Elías y Muñoz Abogados, labour lawyers specialising in dismissals, examines this issue and answers the main questions.

Can I be dismissed while on sick leave?

Yes, you can be dismissed while on sick leave, but it is important to consider:

• The reason for the dismissal. The dismissal letter must be properly drafted and include the reason for the dismissal and the date on which it takes effect. The reason for dismissal cannot be the sick leave itself, as this would amount to discrimination on the grounds of illness. In this respect, the Comprehensive Law on Equal Treatment and Non-Discrimination states that:

  No one may be discriminated against on the grounds of birth, racial or ethnic origin, sex, religion, belief or opinion, age, disability, sexual orientation or identity, gender expression, illness or health condition, serological status and/or genetic predisposition to suffering illnesses and disorders, language, socioeconomic status, or any other personal or social condition or circumstance.
   

• The possibility of challenging the dismissal. To do so, you should consult an employment lawyer specialising in dismissals who can assess whether the dismissal complies with the law and whether a claim can be brought on the basis that the dismissal is null and void for infringing fundamental rights, or unfair.

For example, a worker suffers a heart attack and is placed on temporary incapacity leave. They recover and wish to return to work, but are handed a dismissal letter alleging unsuitability for the role due to changed circumstances, without the employer having adapted the role to the worker’s new condition. In this case, it may be demonstrated that discrimination on health grounds exists and the dismissal could be declared null and void.

The High Court of Justice of Catalonia examined a similar case in its judgment of 27 November 2024, in which the employee began sick leave due to a workplace accident in August 2022, followed by another period of leave due to a non-work-related accident beginning on 18 October of the same year, with an expected duration of 169 days. The company dismissed the employee on 19 October 2022, alleging organisational and production-related reasons, but failed to prove them. The court found that there was discrimination on the grounds of illness due to the close timing between the start of the leave and the dismissal, and the company’s failure to justify the reasons for dismissal.

What are the consequences of a null and void dismissal?

The consequences of a discriminatory dismissal are also regulated by the law on equal treatment and non-discrimination, which states that any provisions, acts or contractual clauses that constitute or cause discrimination on any of the grounds provided for in the law are null and void. In other words, if a dismissal occurs because of illness, it will be null and void.

The consequences of a null and void dismissal are as follows:

• Mandatory reinstatement of the employee to their position. This means the employee must return to the role they held before the dismissal.
• Payment of back pay. The employee must receive the wages not paid from the date of dismissal until the date of the judgment declaring the dismissal null and void, and the corresponding social security contributions must also be paid.
• Payment of compensation. If requested in the claim, compensation for infringement of fundamental rights due to discrimination on the grounds of illness may also be awarded.

Reasons for dismissal while on medical leave

As we have seen, an employee can be dismissed while on sick leave, but there may be various reasons relied upon by the employer:

Disciplinary dismissal while on sick leave

In this case, the dismissal results from a decision by the employer based on a serious and culpable breach by the employee, such as:

• Repeated and unjustified absences from work or lack of punctuality.
• Indiscipline or disobedience at work.
• Verbal or physical abuse directed at the employer or other employees.
• Breach of contractual good faith or abuse of trust in carrying out work duties.
• A continuous and voluntary decline in normal or agreed work performance.
• Habitual drunkenness or drug addiction where it negatively affects work.
• Harassment based on racial or ethnic origin, religion or beliefs, disability, age or sexual orientation, as well as sexual harassment or harassment on the grounds of sex towards the employer or other employees.

A disciplinary dismissal may be classified as fair, unfair or null and void. It is considered fair when the breach alleged by the employer in the dismissal letter is proven. It is unfair when the breach is not proven or when legal formalities have not been complied with, and null and void where discrimination prohibited by the Spanish Constitution or the law exists.

Objective dismissal while on sick leave

Dismissal for objective reasons may occur in several situations:

• Due to a worker’s unsuitability, whether known beforehand or arising after their effective placement within the company.
• Due to the worker’s failure to adapt to reasonable technical modifications in their role.

In this case as well, the courts may classify the dismissal as fair, unfair or null and void, and the consequences will be similar to those of disciplinary dismissal, with some differences:

• The employee is entitled to compensation equivalent to 20 days’ salary per year of service and will be considered unemployed for reasons beyond their control.
• If the dismissal is declared unfair and the employer reinstates the employee, the employee must repay any compensation already received. If reinstatement is replaced with financial compensation, the amount already received will be deducted.

Frequently asked questions

Dismissal while on sick leave raises many questions, so let us address the most common ones:

Can I be dismissed while on sick leave due to illness?

Yes, but the reason for dismissal cannot be the illness itself, as this would amount to discrimination on the grounds of illness, which is prohibited by law and would render the dismissal null and void.

How long do I have to challenge a dismissal if I am on medical leave?

The time limit for challenging a dismissal is the same whether or not you are on sick leave: 20 working days from the date you received notification. You must first submit a conciliation claim to the SMAC and then, if necessary, a claim before the Employment Courts.

Can I be dismissed while on sick leave due to a workplace accident?

Yes, you can be dismissed while on sick leave due to a workplace accident, but there must be objective and justified reasons, or disciplinary grounds amounting to a serious breach by the employee (such as indiscipline, verbal or physical abuse, or workplace harassment).

Who pays if I am dismissed while on sick leave?

If you are dismissed while on medical leave, you will continue receiving your benefit payments. Each case must be assessed individually:

• Workplace accident or occupational illness. In this case, the question is: if I am dismissed while on sick leave, does the insurance provider continue paying? Yes, you will continue receiving payments from the insurance provider, but you must arrange direct payment because your employer is no longer acting as intermediary.
• Common illness or non-work-related accident. The Social Security system pays the benefit, although the insurance provider may manage the payment if contracted by the company.

If I am dismissed while on sick leave, how does it affect my Social Security contributions?

You continue contributing to Social Security during sick leave. If your contract ends, contributions will cease.

You can be dismissed while on sick leave, but what happens with unemployment benefits?

If your medical leave ends and you have been dismissed, you may claim unemployment benefit provided you meet the requirements:

• You are registered with or in an equivalent situation to Social Security registration.
• You are legally unemployed.
• You have contributed for at least 360 days during the previous 6 years.
• You apply for the benefit within the prescribed time limit.

What happens if my contract ends while I am on medical leave?

Sick leave may coincide with the end date of a fixed-term contract. In this case, you may be informed that the contract will not be renewed. This is not considered a dismissal; the employment contract has simply reached its agreed end date.

Can I be dismissed while on maternity or paternity leave?

The dismissal may be considered null and void, whether it occurs during the leave or shortly after returning to work, if the reason for dismissal is related to pregnancy, childbirth, adoption or fostering.

If the dismissal is justified by other reasons, it may be considered fair, but the employer must prove those reasons.

What should I do if I am dismissed while on sick leave?

First, read all documents carefully, seek legal advice and, where appropriate, sign them as “NOT AGREED”.

You should then submit a conciliation claim before the SMAC with the assistance of an employment lawyer specialising in dismissals. The final step, if no agreement is reached, is to file a claim before the Employment Courts.

Can I be dismissed while on sick leave due to anxiety or depression?

You can be dismissed while on sick leave due to anxiety or depression, but the reason cannot be the anxiety, depression or the fact of being on sick leave itself, because this could amount to discrimination and the dismissal could be declared null and void.

I am on sick leave and want to be dismissed: what can I do?

In this case, it is not a dismissal but rather an agreement to terminate the employment contract due to a substantial modification of working conditions. For example, if the company changes the employee’s duties, the employee may request termination of the contract and compensation.

Can I be dismissed while on sick leave during a probationary period?

Yes, but this does not automatically mean the dismissal is valid because, although the employer is not required to justify the reason during a probationary period, the medical leave itself cannot be the reason for termination, as this would amount to discrimination and the dismissal could be null and void.

Ultimately, the general answer is that an employee can be dismissed while on sick leave, but if the reason for dismissal amounts to discrimination, the dismissal may be declared null and void.

If you are on sick leave and your employer has dismissed you, contact us so that we can help you bring a claim. Our team of labour lawyers specialising in dismissals will review your case and advise you.