Can You Be Fired While on Sick Leave in Spain? (2024 Guide)

🇪🇸 Read the original in Spanish

Being in a situation of temporary disability, commonly known as incapacidad temporal (IT) or "being on sick leave", is one of the circumstances that generates the most vulnerability and doubt for any worker in Spain. There is a widespread belief that as long as a public health service doctor signs the sick leave certificate, your job is bulletproof and the employer is prohibited from terminating your contract. However, the legal reality in the Spanish labor system is much more complex, especially following recent legislative reforms aimed at protecting workers' health. In this article, we will analyze in depth whether it is legal to be fired while on sick leave, under what conditions it can happen, the consequences of an unfair or void dismissal, and how you must act step-by-step to defend your rights.

The legal framework: Is dismissal legal during temporary disability?

The short and direct answer is: yes, you can be fired while on sick leave, but not because you are on sick leave. It seems like a contradiction, but it is the foundation of labor law in Spain. The fact that a worker is on temporary disability does not suspend the employer's organizational or disciplinary powers. However, the key lies in the cause alleged for said dismissal.

To understand this scenario, we must look at the following reference regulations:

• *The Estatuto de los Trabajadores (Workers' Statute - Royal Legislative Decree 2/2015):* Regulates the grounds for termination of employment contracts. Article 52 regulates objective dismissal and Article 54 regulates disciplinary dismissal.
• Law 15/2022, of July 12, comprehensive for equal treatment and non-discrimination: This law has brought about a radical change. In its Article 2.1, it prohibits discrimination on the grounds of illness or health condition, which directly affects dismissals without justified cause during a medical leave.
• *The Ley Reguladora de la Jurisdicción Social (Law Regulating Social Jurisdiction - Law 36/2011):* Which sets the deadlines and procedures to challenge a dismissal before the Social Courts.
• *The Ley General de la Seguridad Social (General Social Security Law - LGSS):* Which regulates contributions and the collection of temporary disability benefits during and after the term of the contract.

The key difference: Justified cause vs. Discrimination

For a dismissal while on sick leave to be legal and classified as procedente (fair), the company must prove a real, objective, or disciplinary cause that is completely unrelated to your health status.

1. *Disciplinary Dismissal (Art. 54 of the Estatuto de los Trabajadores):* The company can fire you if you commit a serious and culpable offense. For example, if it is discovered that you are carrying out activities incompatible with your recovery (such as working elsewhere or engaging in physical activities that prevent your healing), or for reasons prior to the sick leave that have only now been discovered.
2. *Objective Dismissal (Art. 52 of the Estatuto de los Trabajadores):* The company can allege economic, technical, organizational, or production causes (the so-called ETOP causes). For example, if the company enters continuous losses or if your position is redundant due to a restructuring of the department.

What happens if you are fired and the only reason is that you are sick or on leave? This is where Law 15/2022 comes into play. If the dismissal does not have a real and justified cause, and it is proven that the real reason for the termination is your health status or the duration of your leave, the dismissal will no longer be considered simply unfair, but can be declared nulo (null and void) due to discrimination.

Dismissal classifications and their financial consequences

If you decide to challenge the dismissal in court, the social judge will determine one of the following three legal classifications:

1. Despido Procedente (Fair Dismissal)

The employer manages to prove that there was a legal and real cause (economic, organizational, or disciplinary) for the dismissal.

• Consequence: The contract is terminated fully legally. If it is an objective dismissal, you are entitled to a severance pay of 20 days' salary per year worked with a maximum of 12 monthly payments. If it is a fair disciplinary dismissal, you are not entitled to severance pay. In both cases, you retain the right to your finiquito (final settlement) and to unemployment benefits (paro).

2. Despido Improcedente (Unfair Dismissal)

This is declared when the employer cannot prove the cause alleged in the dismissal letter, or when formal requirements have not been met (for example, not delivering the letter in writing).

• Consequence: The employer must choose within 5 days between reinstating you in your job or paying you a severance package of 33 days' salary per year worked for contracts signed from February 12, 2012 (with a maximum of 24 monthly payments), and 45 days' salary per year worked for seniority prior to that date (with a maximum of 42 monthly payments).

3. Despido Nulo (Null and Void Dismissal)

This is the most relevant classification following the approval of Law 15/2022. It applies when the dismissal violates fundamental rights or is discriminatory (in this case, on the grounds of illness or health).

• Consequence: The dismissal has no legal effect. The company is obliged to reinstate you immediately in your job, paying you the salarios de tramitación (back pay/lost wages from the day of dismissal until the date of the court ruling). Furthermore, when a violation of a fundamental right is declared, the worker is usually entitled to an additional compensation for moral damages, which typically ranges between 1,000 € and 10,000 € (or more, depending on the severity and circumstances).

Practical step-by-step procedures: What to do if you are fired while on sick leave

If you receive a dismissal notice while you are on temporary disability, you must act quickly and calmly. Deadlines in Spanish labor law are extremely strict. Follow these steps to protect your rights:

1. Receive the notification correctly: If the dismissal letter is handed to you in person or arrives by burofax (certified mail), acknowledge receipt. When signing, always write in your own handwriting the date of receipt and the phrase "NO CONFORME" (Not Agreed) next to your signature. This does not commit you to anything, but it safeguards your right to claim in court.
2. *Review the dismissal letter and the finiquito:* Do not sign any document stating that you waive your right to take legal action or that you declare yourself fully settled and paid off unless you are sure the amounts are correct.
3. Calculate the deadline to challenge: You have a strict deadline of 20 business days (Saturdays, Sundays, and public holidays do not count) to file the dismissal lawsuit. This period begins to count the day after the effective date of the dismissal.
4. *File the Papeleta de Conciliación (Conciliation Petition): Before going to court, it is mandatory to attempt an agreement. You must draft and present a conciliation petition before the Servicio de Mediación, Arbitraje y Conciliación* (SMAC - Mediation, Arbitration, and Conciliation Service) of your Autonomous Community. Filing this petition pauses the 20-day deadline (up to a maximum of 15 business days).
5. Attend the conciliation act: A meeting will be held with a mediator and the company's representative. If there is an agreement (avenencia), the settlement or reinstatement pact is signed. If there is no agreement (sin avenencia), the judicial path opens.
6. *File the Lawsuit before the Juzgado de lo Social (Social Court): If the conciliation ends without agreement, you must file the court lawsuit before the remainder of the 20 business days* (which were paused when presenting the petition) runs out.
7. Manage your financial benefit: While on sick leave, you will continue to collect your temporary disability benefit. If the dismissal becomes effective, you will stop receiving your salary from the company, but you will transition to collecting your sick pay directly through the collaborating Mutua (accident insurance mutual) or the Instituto Nacional de la Seguridad Social (INSS - National Social Security Institute) via "direct payment" (pago directo).

Practical examples with real figures

To better understand the economic impact and the differences between the various classifications of a dismissal during sick leave, we will analyze two practical scenarios based on common worker profiles in Spain.

Example 1: Alejandro's null and void dismissal due to discrimination

Alejandro works as a software developer at a tech consultancy in Madrid. He has an indefinite contract since January 1, 2021 and receives a gross monthly salary of 2,500 € (including the pro-rata of extra payments), which is equivalent to a daily salary of 83.33 €.

On March 15, 2024, Alejandro suffers a severe herniated disc and goes on medical leave for temporary disability. Fifteen days later, on March 30, 2024, the company sends him a burofax notifying him of a disciplinary dismissal, alleging "voluntary low performance", without providing any proof of said drop in productivity prior to his sick leave.

Alejandro challenges the dismissal, requesting it be declared null and void due to discrimination on health grounds (Law 15/2022). The judge determines that the company has failed to prove any real cause and that the dismissal was solely due to the sick leave. The dismissal is classified as NULO.

• Consequences for the company:
• Mandatory reinstatement: Alejandro must return to his job immediately.
• Salarios de tramitación (Back pay): If the trial is held 6 months (180 days) after the dismissal, the company must pay him the wages he missed out on: 180 days × 83.33 €/day = 15,000 €.
• Compensation for moral damages: Having violated Law 15/2022, the judge orders the company to pay Alejandro an additional compensation of 6,250 € (taking the LISOS labor sanctions scale as a reference).
• Total cost for the company: 21,250 € plus the reinstatement of the worker.

Example 2: María's fair objective dismissal

María works as an administrative assistant at a small travel agency. She has an indefinite contract since June 1, 2022 and her gross monthly salary is 1,500 € (daily salary of 50.00 €). Her seniority at the time of dismissal (May 31, 2024) is exactly 2 years (730 days).

María has been on sick leave for depression for two months. Due to the crisis in the tourism sector, the travel agency provides documentary evidence of continuous economic losses during the last three quarters and decides to make María's position redundant through an objective dismissal for economic causes.

María challenges the dismissal, but in court, the company proves the reality of its precarious economic situation. The judge classifies the dismissal as PROCEDENTE (fair).

• Consequences for María:
• The dismissal is fully legal and her contract is terminated.
• Severance pay for objective dismissal: She is entitled to 20 days' salary per year worked. Having 2 years of seniority, she is entitled to 40 days of severance pay.
• Calculation of the severance pay: 40 days × 50.00 €/day = 2,000 €.
• María keeps her finiquito (accrued and unused holidays, proportional part of extra payments if they were not pro-rated) and transitions to collecting unemployment benefits once she is medically discharged.

Mistakes you must avoid

Given the emotional stress generated by being fired while sick, it is very common to make mistakes that can ruin your legal defense strategy. Avoid making the following errors:

• Signing any document without writing "No conforme": If you sign the finiquito or the dismissal letter without this note, the company could argue before the judge that you accepted the termination of the contract by mutual agreement, making it extremely difficult to claim your severance pay or nullity.
• Letting legal deadlines pass: The 20 business days deadline flies by. Do not wait to receive your medical discharge to start the claim procedures. You can perfectly sue the company while you remain on sick leave.
• Performing activities incompatible with your recovery: If you are on sick leave for a back injury and the company catches you moving house, or if you are on leave for anxiety and post party photos on social media, the company will have a fully fair and legal disciplinary cause for dismissal.
• Thinking that a null and void dismissal is automatic: The nullity of a dismissal under Law 15/2022 requires proving reasonable indications that the dismissal was due to the illness. It is not enough to simply be on sick leave; a solid legal basis must be built for the judge to appreciate the discrimination.

Frequently Asked Questions (FAQ)

Who pays my sick leave if I am fired while on IT?

If you are fired while on sick leave, you do not stop receiving your financial benefit. From the day after the dismissal, you will collect your temporary disability benefit through the pago directo (direct payment) modality. The payment will be made by the Instituto Nacional de la Seguridad Social (INSS) or the company's collaborating Mutua. You will receive the same amount you were entitled to, but Social Security contributions will be deducted.

Do I consume unemployment days while on sick leave and dismissed?

Yes. From the moment your employment contract is terminated, the time you spend on sick leave will be deducted from the unemployment benefit (paro) period you are entitled to, provided that the sick leave is due to common contingencies (common illness or non-occupational accident). If the leave is due to a professional contingency (work accident or occupational disease), the IT time after the dismissal is not deducted from your unemployment benefits.

What happens if I get my medical discharge after being fired?

Once the public health service doctor or the Mutua signs your medical discharge (alta médica), the payment of the temporary disability benefit will end. From that moment, you have a period of 15 business days to go to the Servicio Público de Empleo Estatal (SEPE - State Public Employment Service) and formally apply for the unemployment benefits (paro) you have accumulated.

Can they fire me if my sick leave is very long?

In the past, Article 52.d of the Estatuto de los Trabajadores allowed objective dismissal for intermittent absences, even if justified by medical leave. However, this article was repealed in the year 2020. Currently, the duration of the leave cannot be a legal reason to fire you. In fact, the longer or more serious the illness, the greater the protection provided by Law 15/2022, as the dismissal could be equated to discrimination on the grounds of disability.

Summary

• Dismissal during sick leave is possible, provided that the company justifies and proves a real objective (economic, organizational) or disciplinary cause unrelated to your health status.
• Dismissal without justified cause during sick leave can be declared nulo (null and void) due to discrimination under Law 15/2022, forcing the company to reinstate you and pay your back wages plus compensation for moral damages.
• You have a deadline of 20 business days from the effective date of the dismissal to challenge it by presenting a conciliation petition (papeleta de conciliación).
• While you remain on sick leave after the dismissal, you will continue to receive the financial benefit through pago directo from the INSS or the Mutua.
• Signing the dismissal documents with the note "No conforme" and the correct date is vital to safeguard your right to claim in court.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.