Many workers assume that being on sick leave automatically prevents any dismissal. However, Spanish jurisprudence shows that this does not correspond to reality, especially when the company is able to prove that the decision had no relation to the worker’s health status. In this article, we will talk about the dismissal of a worker on sick leave due to anxiety and the way in which the Spanish Court assessed the legality of this dismissal when there are duly proven economic, productive and organizational reasons.
A decision by the Superior Court of Justice of the Basque Country, handed down in November last year, confirmed as valid the objective dismissal of a worker who, in addition to being on sick leave due to anxiety, was also a single mother.
A long career at the company
The worker had started working in July 2007 in several municipal sports centers in Irún, having undergone successive subrogations due to changes in companies responsible for operating these facilities, reports the Spanish digital newspaper Noticias Trabajo.
In October 2022, she was again subrogated to a new entity, maintaining the professional category of dietitian and nutritionist, a role she had performed since at least 2021. That same month, she began a situation of temporary incapacity due to anxiety. Shortly afterwards, the company began to analyze the real viability of the nutrition service being provided at that sports center.
Reasons for dismissal
On January 3, 2023, the company announced the dismissal for objective reasons of a productive and organizational nature. Firstly, the nutrition service was not included in the specifications of the municipal concession and was not part of the company’s normal activity in the remaining 39 centers it operated.
Furthermore, effective work data was extremely low. Between January and October 2022, the worker, who was on sick leave due to anxiety at the time of her dismissal, had only worked around 79 hours of actual work, when her theoretical annual journey was 1,513 hours.
Finally, the billing for the service was residual. In 2021 it had generated just 5,694 euros and in 2022 this value dropped to 2,825 euros, figures that did not justify maintaining a full-time job, according to the same source.
What the court said
The worker went to court and filed a lawsuit with Labor Court No. 5 of San Sebastián, asking for the dismissal to be declared null and void. The court of first instance rejected the request and considered the dismissal to be valid.
Given this, the employee then appealed to the Superior Court of Justice of the Basque Country, insisting that the dismissal had been motivated by her sick leave due to anxiety and also alleging that the compensation had been miscalculated, which should invalidate the process, says the source previously cited.
Final decision
The high court once again ruled in favor of the company. The judges highlighted that the dismissal occurred almost three months after the start of the sick leave due to anxiety and that the economic and organizational reasons presented were duly demonstrated. It was proven that the nutrition service was deficient, unnecessary and unrelated to the company’s main activity, which legitimized the termination of the job.
As for the error in calculating the compensation, which was 1,875.91 euros in favor of the worker, the court considered that it was an excusable error, because the values used resulted from the data transmitted by the previous company in the subrogation process. Therefore, the dismissal remained valid and the company was only obliged to pay the difference determined in the compensation.
In total, after the judicial correction, the worker received 27,909.14 euros, including compensation, compensation for the lack of prior notice and the respective final settlement, according to the .
Framework in Portugal
In Portugal, a similar situation is essentially regulated by the Labor Code, approved by Law No. 7/2009, and by the Constitution of the Portuguese Republic. In its article 53, it enshrines the right to job security and prohibits dismissals without just cause or for political or ideological reasons. However, this does not mean that a worker on sick leave is immune from dismissal.
The Labor Code establishes, in article 351, that dismissal for just cause occurs when there is culpable behavior on the part of the employee that makes it impossible to maintain the employment relationship. That was not the type of dismissal at issue in this Spanish case.
Dismissal due to the termination of the job, regulated by articles 367 to 372 of the Labor Code, allows the company to terminate the contract when the job is no longer necessary for economic, structural, technological or market reasons, as long as there is no possibility of reclassifying the worker.
There is also dismissal due to inadequacy, provided for in articles 373 to 380, when the worker is no longer able to adequately perform the functions for which he was hired, but this mechanism requires its own procedure and strict criteria.
Sick leave does not make dismissal illegal
In Portugal, as in Spain, sick leave alone does not automatically make a dismissal illegal. What the law prohibits is dismissal being motivated by illness, in accordance with article 25 of the Labor Code, which enshrines the principle of non-discrimination, including on grounds of health status.
If the company is able to demonstrate, with documents and objective data, that the dismissal results from economic, organizational reasons or the actual termination of the job, the court may consider it lawful, even if the worker is on leave.
On the other hand, if it is proven that sick leave was the true reason for the dismissal, then it is considered unlawful and, under articles 381 and 389 of the Labor Code, the employee may be entitled to reinstatement or high compensation, as well as payment of all outstanding remuneration.
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