The question “Can a company fire an employee on medical leave?” has an easy answer: It depends. The regulatory development of this issue is what makes the fact of dismissing a worker in a situation of Temporary Incapacity entail a series of risks that did not exist before.
The premise is clear: The situation of illness in itself is not a guarantee or shield against dismissal; it will depend on the cause or justification for the dismissal that will determine whether it is justified, unjustified or null and void.
Following the entry into force of Law 15/2022, of 12 July, on equal treatment and non-discrimination, almost a year ago, the pronouncements of the courts in application of this law have been very diverse; some have considered dismissal carried out while on medical leave to be unfair and others have qualified it as null and void and have even set compensation for violation of fundamental rights or damages.
The article on which this prohibition of dismissal during a process of temporary incapacity is based states that no one may be discriminated against on the grounds of birth, racial or ethnic origin, sex, religion, conviction or opinion, age, disability, sexual orientation or identity, gender expression, illness or health condition, serological state and/or genetic predisposition to suffer pathologies and disorders, language, socio-economic situation, or any other personal or social condition or circumstance.
Furthermore, in its article 27, the law states that it is not enough to declare the discriminatory act of dismissal null and void; if it is found, the judge is obliged not only to annul it and restore the victim to his or her previous position, but also to set an additional compensation for damages to repair the damage caused.
From the court decisions obtained to date, it is clear that the law answered in divergent manners the question if a company can fire an employee on medical leave. However, from some of the published court decisions we can conclude that:
- Those dismissals made immediately after the communication of the medical leave will be declared null and void as long as the letter of dismissal does not state the specific reasons for the dismissal. It will no longer be sufficient to give the worker a generic letter that recognises the unfairness of the dismissal in the text itself, as these situations will lead to the dismissal being declared null and void and the payment of additional compensation.
- In a much lighter line than the previous one, some pronouncements have mentioned that law 15/2022 does not include new grounds for nullity when dismissal is made, but rather aims to reinforce the existing ones. Thus, there are courts that affirm that dismissal in a situation of TI is not discriminatory when it is a dismissal with just cause.
In order to prevent dismissals when the worker is on medical leave from becoming null and void, we comment on some aspects that could lead to the nullity of the dismissal:
- That it is carried out immediately after communicating the situation of temporary incapacity (TI).
- That the communication given to the worker does not identify or develop any cause for dismissal.
- If the worker is on sick leave and the unfairness of the dismissal is recognised in the notice of termination, and even the compensation corresponding to this recognition is made available to the worker.
- That it affects a worker with a foreseeably long period of sick leave due to an illness that can be assimilated to a situation of disability.
It is worth noting that in many cases the majority of dismissals are carried out hastily and that on many occasions the employer considers that by paying the maximum legal compensation the dismissal will never go to court. However, on many occasions the lack of legal advice or a generic dismissal letter results in a lost lawsuit and serious economic damage for the company.