Employee Sick Leave
It is common for workers to be sick and unable to go to work. Frequent sick leave may cause financial losses to the company.
Can a worker be fired while on sick leave?
The law considers the dismissal of a worker for illness to be unequal treatment and therefore by default the dismissal will be considered invalid. If the dismissal is not valid, the employee’s employment relationship with the employer is not terminated and the employee has the right to continue to work and receive wages and the employer has to continue to pay the employee’s Social Security contribution.
But what if the worker frequently calls in sick and causes serious financial losses to the employer?
It is not possible to allege frequent sick leave to dismiss an employee regardless of the number of days missed.
Fake sickness or unjustified sick leave
As you know, in Spain you need a medical certificate (parte médico) to take a leave of absence. The biggest problem is that it is so easy to get a doctor’s certificate. Workers can just go to their family doctor and say that they are in pain here and there and they will get it. If this is true, there is nothing wrong with it, but if the worker is faking illness, exaggerating the pain and calling in sick for no reason, then he can be fired.
Article 54 of the Spanish Workers Law states that a worker can be dismissed if he or she has problems, such as alcoholism, frequent tardiness, insulting colleagues, committing a crime, or maliciously violating the employment contract. Among them, faking sickness, exaggerating sickness in order to get a longer leave or other unjustified sickness is a malicious violation of the employment contract, because it is obvious that the worker does not come to work under the pretext of this scenario. In this case, the employer can fire the employee with full justification.
Note: No compensation is payable for a reasonable dismissal of an employee.
Related article: Severance pay for employee dismissal rules in Spain
Private investigator to deal with fake sick
Companies in Spain usually choose to hire a private investigator to investigate whether the employee is really sick. Sick leave in other words is unable to work because of health reasons, this situation is necessary to rest at home. If the worker during the sick leave to do some physical exercise (soccer, basketball, etc.), visit bars, nightclubs, dance clubs, amusement parks or other places of entertainment and travel, then there is reason to suspect that the employee is not really sick and needs to recuperate at home. This is because these activities are clearly inconsistent with the behavior of a person who is home sick. As long as the employer has evidence, whether in the form of photographs, personal evidence, etc., the employee can be justifiably dismissed.
In addition, there is a department under the Spanish government that specializes in checking employees’ sick leave, called “inspección médica”. This department is dedicated to checking the situation of employees who take leave because of illness. If the employer suspects that the employee is not really sick, or that the illness is not as serious as claimed, the employer can report the case to the health inspection department, forcing the employee to stop taking leave and continue working. The employee will also be required to return any benefits received illegally during the sick leave.
