One of the most confusing employment situations for companies is what to do when they need to terminate an employment relationship and the employee is on sick leave. Dismissing an employee on sick leave in Barcelona is possible in certain cases, but sick leave should never be the sole reason for the decision.
Since the entry into force of Law 15/2022, illness and health conditions are expressly protected against discrimination. This obliges companies to be especially rigorous when dismissal coincides with a period of temporary incapacity.
At MGI Àmbit we specialize in Labor Law and provide employment advice to companies in Barcelona. Before carrying out a dismissal during sick leave, we analyze the cause, the available evidence, the collective bargaining agreement, the employee's personal circumstances, and the procedure we must follow to reduce the risk of unfair dismissal or invalidity.
Quick answer: We can dismiss an employee on sick leave in Barcelona if there is a real, sufficient cause unrelated to their illness, such as a proven disciplinary infraction or properly justified economic, technical, organizational, or production-related reasons. Temporary incapacity does not automatically prevent dismissal, but if there is evidence that the illness or health condition was the true reason, the company may face a declaration of nullity.
Can you fire an employee on sick leave in Barcelona?
Yes. Being on temporary disability leave does not constitute an absolute prohibition against dismissal.
Are you unsure whether you can dismiss an employee on sick leave in Barcelona? Our employment lawyers will analyze your specific case and give you a clear answer before you make any decisions.
The crucial question is why we fired them.
If we need to dismiss a worker on sick leave in Barcelona, we must be able to demonstrate that the same decision would have been made even if the employee were not on sick leave.
Sick leave is not grounds for dismissal
We cannot justify termination simply because the worker has not been providing services for weeks or months.
Furthermore, the former objective dismissal for absenteeism under Article 52.d of the Workers' Statute was repealed in 2020.
Therefore, the possibility of terminating the contract for reaching certain percentages of justified absences no longer exists.
The company needs an independent cause
Among other scenarios, we may encounter:
- A serious and culpable disciplinary breach.
- A job elimination due to economic, technical, organizational or production reasons.
- A termination included within a collective dismissal.
- Other legally provided causes of termination.
At MGI Àmbit we first analyze the cause and then decide if it is legally viable to proceed while the worker remains on sick leave.
Risk of wrongful dismissal due to illness or health condition
This is currently one of the most important points for any company.
Law 15/2022 expressly includes illness or health condition among the circumstances protected against discrimination and prohibits discrimination also in dismissal.
Being on sick leave does not automatically make a dismissal invalid
We must not fall into the opposite extreme.
The mere coincidence between temporary incapacity and dismissal does not automatically determine nullity.
We must analyze whether there is sufficient evidence that the illness actually influenced the business decision.
What happens if there are signs of discrimination?
When the employee provides well-founded evidence of discrimination, the company must offer an objective, reasonable and sufficiently substantiated justification for its decision.
Therefore, before dismissing a worker on sick leave in Barcelona, we recommend checking what documentation will prove the true reason for the termination.
Consequences of an unlawful dismissal
If the dismissal is declared null and void, the main consequence is the reinstatement of the worker with payment of the wages not received.
Furthermore, when there is a violation of fundamental rights or discrimination, additional compensation for damages may be sought.
Disciplinary dismissal during sick leave
We can dismiss an employee for disciplinary reasons during a temporary disability if they have committed a serious and culpable breach that is sufficiently proven.
It is not enough to suspect that the leave is fraudulent
The fact that a worker performs a certain activity during their temporary disability does not automatically mean that there is fraud.
We need to analyze whether that behavior:
- It is incompatible with his medical limitations.
- It impairs or delays your recovery.
- It demonstrates that the alleged situation does not correspond to reality.
- It constitutes a breach of contractual good faith due to other circumstances.
The evidence must also be obtained lawfully.
Preliminary hearing before disciplinary dismissal
This point has changed significantly.
The Supreme Court established in November 2024 that, before a disciplinary dismissal, we must offer the worker the possibility of defending himself against the charges made against him, in application of article 7 of ILO Convention 158, unless it is reasonably impossible to require such a hearing.
Therefore, we currently do not recommend preparing a disciplinary letter without first checking whether we should conduct that preliminary hearing.
The dismissal letter remains essential
We must clearly identify:
- The alleged facts.
- The relevant dates.
- The seriousness of the breach.
- The effective date of the dismissal.
We will not be able to reconstruct in court a cause that is completely different from the one communicated to the worker.
Objective dismissal of an employee while on sick leave
We can also dismiss a worker on sick leave in Barcelona for objective reasons when there are real economic, technical, organizational or productive reasons and the worker's choice is not related to their state of health.
Economic causes
Economic cause may exist when there are current or anticipated losses or a persistent decrease in the level of ordinary income or sales as legally established.
Organizational or production causes
It may also be necessary to eliminate positions due to changes in the organization, work systems, demand for products or services, or production needs.
The important thing is to justify why that specific position disappears or ceases to be necessary.
Formal requirements for objective dismissal
In general, we must:
- Communicate the reason in writing.
- Make available the compensation of 20 days of salary per year of service, with a maximum of 12 monthly payments, except for legal exceptions.
- Respect a 15-day notice period or assume financial responsibility for non-compliance.
When the employee is on sick leave, we pay special attention to ensuring that the prior documentation demonstrates that the decision is truly based on business reasons independent of the leave.
What should we check before dismissing someone during a temporary disability?
Before dismissing an employee on sick leave in Barcelona, we recommend conducting a prior labor review of their file.
The chronology of the decision
We need to know when the problem arose and when the company actually decided to terminate the contract.
A business decision documented prior to the knowledge of the leave offers a very different evidentiary scenario than a dismissal decided immediately after receiving it.
The collective agreement
The agreement may include additional procedures, disciplinary safeguards, or obligations that we must respect.
Situations requiring special protection
We also check if there are circumstances that have specific protection against dismissal, such as pregnancy, certain permits and suspensions related to work-life balance or birth, exercise of certain labor rights or representation of workers.
The available test
We do not recommend announcing the dismissal and then trying to justify it.
The documentation must be prepared beforehand.
What happens to temporary disability after dismissal?
Terminating the contract does not mean that the worker automatically ceases to be on IT.
A poorly executed dismissal can be very costly. Avoid penalties and claims with specialized labor law advice from MGI Àmbit, experts in employment law for companies in Barcelona.
Temporary disability due to common contingencies
If the leave is due to common illness or non-work-related accident, the worker continues to receive temporary disability benefits until medical discharge, in the amount corresponding to the rules of Social Security.
If you subsequently apply for contributory unemployment benefits and meet the requirements, the period spent on sick leave after termination can be counted as already used up for unemployment benefits.
Work accident or occupational disease
When the IT (Temporary Incapacity) derives from occupational contingencies, the treatment is different and the period of incapacity after termination is not subsequently deducted from the unemployment benefit under the same terms.
Therefore, it is not correct to simply state that when dismissing the worker, "the SEPE starts paying his sick leave.".
Unfair dismissal and null dismissal: differences for the company
Unfair dismissal
When we cannot sufficiently prove the cause or fail to meet certain requirements, the dismissal may be declared unfair.
In general, the company can choose between reinstatement or legal compensation, except in special cases such as certain workers' representatives.
The general compensation for the period after February 12, 2012 is 33 days of salary per year worked, with a maximum of 24 monthly payments, with the transitional rules applying when there is prior seniority.
Unlawful dismissal
The nullity is different.
If there is discrimination based on illness or health condition, violation of fundamental rights, or any of the other legally protected cases, we may encounter mandatory readmission and back pay.
Therefore, the main risk when dismissing a worker on sick leave in Barcelona is not only in correctly calculating the compensation: we must first rule out a possible scenario of nullity.
How can an employee challenge a dismissal in Barcelona?
The employee generally has a period of 20 working days to challenge the dismissal.
Work-life balance in Catalonia
In Catalonia, before going to the judicial body, the prior labor conciliation must normally be processed before the competent service of the Generalitat.
The filing of the application suspends the expiry period, which then continues for the remaining time.
There is no new general period of 15 additional days after the conciliation: we continue working within the total expiry period and the legally provided suspension rules.
How we advise companies at MGI Àmbit
At MGI Àmbit we specialize in Labor Law for companies in Barcelona and we approach these dismissals from a preventative perspective.
We analyze whether there is a real cause
We review whether we are facing a possible disciplinary dismissal, an objective dismissal, or some other alternative.
We assess the risk of invalidity
We studied the temporal relationship between the leave and the business decision, the information that the company knew, and any specially protected circumstances.
We prepared the procedure
We reviewed the agreement, the preliminary hearing where applicable, the evidence, the compensation, and the dismissal letter.
We defend the company if there is a challenge
If the worker makes a claim, we intervene in the labor conciliation process and, when necessary, in the defense before the social jurisdiction.
Our specialized work allows us to support the company from the initial assessment of the problem to its resolution.
Conclusion: Dismissing someone during sick leave requires very thorough preparation of the cause
Dismissing a worker on sick leave in Barcelona is legal when there is a real cause unrelated to the illness, but the company must act with special caution.
Since 2022, illness and health conditions have been expressly protected against discrimination. At the same time, temporary incapacity does not automatically invalidate a decision.
The difference will usually lie in the cause, the chronology, and the evidence.
At MGI Àmbit we specialize in business labor law and help companies to properly prepare these types of decisions to minimize the risk that an initially justifiable dismissal ends up being declared unfair or null.
Frequently asked questions about dismissing an employee on sick leave in Barcelona
At MGI Àmbit we help you manage complex employment situations with complete legal certainty. Contact us today for personalized, no-obligation guidance.
Is it legal to dismiss an employee on sick leave in Barcelona?+
Yes. Temporary incapacity does not automatically prohibit dismissal. However, we need a real cause unrelated to the illness. If there is evidence that the health condition was the true reason for the decision, the dismissal may be declared null and void due to discrimination.
Does being on sick leave automatically make a dismissal invalid?+
No. Temporary incapacity does not automatically invalidate the contract. We must analyze whether there is evidence of discrimination based on illness or health condition and whether the company can demonstrate an objective reason, sufficiently proven and unrelated to that circumstance.
Can we dismiss an employee for absenteeism due to accumulating sick leave?+
Not through the former Article 52.d of the Workers' Statute. That objective cause for dismissal due to absenteeism was repealed in 2020. Serious unjustified absences may be subject to other disciplinary measures, but a justified sick leave does not allow for the reinstatement of that dismissal route for absenteeism.
Can we carry out a disciplinary dismissal while the employee is on sick leave?+
Yes, if there is a serious and culpable breach that is sufficiently proven. Furthermore, following the Supreme Court ruling of November 2024, we must review the requirement to offer the employee a prior hearing to defend themselves against the charges before disciplinary dismissal.
Can a dismissal for objective reasons be carried out while the employee is on sick leave?+
Yes, when there are genuine economic, technical, organizational, or production-related reasons and we can demonstrate that the employee's selection is not related to their temporary incapacity. The fact that the selection coincides with the employee's leave of absence makes it especially important to document the reason and the criteria used.
What happens to sick leave after dismissal?+
The worker remains on temporary disability leave until medically cleared. The financial consequences depend on whether the disability stems from common or occupational contingencies. In the case of common contingencies, the period following the termination of employment can be subsequently deducted from contributory unemployment benefits; this same deduction does not apply to occupational contingencies.
How long does the employee have to challenge the dismissal?+
Generally, you have 20 working days from the date of dismissal. Filing a request for prior conciliation suspends the statute of limitations, and once the conciliation hearing has taken place or the corresponding legal effect has occurred, the time limit continues to run for the remaining days.
Why consult with MGI Àmbit before carrying out the dismissal?+
Because we specialize in corporate labor law. Before any dismissal, we review the cause, the evidence, the collective bargaining agreement, any potential discrimination, special protections, and all necessary documentation. The goal is for the company to understand the legal risks before communicating a decision that is difficult to reverse later.
Do you have any questions about this topic?
Our team of expert advisors will help you resolve any issues related to our services.
Contact us now
A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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