If you need specialized legal advice in cases of dismissal during medical leave, do not hesitate to contact Fernanda Vargas on WhatsApp or book an appointment via Calendly.
Can You be Dismissed While on Medical Leave in Spain? The Short Answer
Dismissal of an employee who is on medical leave is an extremely sensitive issue in Spain. On the surface, firing someone during a period of temporary incapacity might appear unacceptable; however, the legal answer depends on many factors. In 2026, legislation and recent case law have set clear limits on when a dismissal is deemed void, unjustified, or justified.
What Changed with Law 15/2022: Illness as a Form of Discrimination (Articles 2.1, 9, and 26)
Law 15/2022 brought significant changes regarding equality and non-discrimination, expressly including “illness or health condition” as one of the prohibited grounds for discrimination. Article 2.1 clarifies this principle, while Article 9.1 prohibits discriminatory employment practices. Moreover, Article 26 declares null any act or clause that causes discrimination. This framework means that if it can be demonstrated that a dismissal was based on an employee’s health status, the dismissal could be ruled void.
Void, Unjustified, or Justified Dismissal: Consequences for the Employee and the Company
The classification of a dismissal as void, unjustified, or justified leads to very different consequences for both parties. A void dismissal entails the obligation to reinstate the employee with payment of back wages during the dismissal process. On the other hand, an unjustified dismissal may result in compensation, typically calculated as 33 days per year of service with a cap of 24 monthly installments. A justified dismissal, provided all legal prerequisites have been met, generally exempts the employer from these responsibilities.
The Importance of Evidence: Temporal Proximity, Lack of Just Cause, Replacement, and Internal Communications
Evidence plays a critical role in these cases. Factors such as the temporal proximity between the start of the medical leave and the dismissal, the absence of a clear, objective reason, replacement of the employee, or ambiguous internal communications can all suggest a discriminatory motive. Courts have used these signs to trigger a reversal of the burden of proof in favor of the employee.
The Shift in the Burden of Proof (Article 30 of Law 15/2022) and What the Company Must Prove
According to Article 30 of Law 15/2022, when the claimant presents compelling evidence of discrimination, the company must then objectively justify its actions. In practice, this means that the employer must prove that the dismissal was based on objective reasons and not on the employee’s health condition. This shift is essential to safeguard the rights of workers in vulnerable situations.
What the Courts Have Said in 2025-2026: TSJ Cases from Navarra, Galicia, Catalonia, and the Basque Country
In recent years, various Superior Courts of Justice across Spain have issued rulings that set important precedents on this matter. For instance, a case in Navarra involved the reinstatement of an executive on long-term medical leave with additional recognition of moral damages amounting to €25,000 due to clear discriminatory signals. In Catalonia, a dismissal declared void due to a declared end of contract led to an increase in moral damages up to €15,000, while a disciplinary dismissal in Galicia—based on social media behavior during the medical leave—was deemed unjustified. These judgments underscore the necessity of a careful, case-by-case legal analysis.
The Supreme Court Has Yet to Unify the Doctrine: Practical Implications
Despite several rulings by the Superior Courts, the Supreme Court has not yet unified its doctrine regarding dismissals during medical leave. In practice, this means that outcomes can vary significantly depending on the jurisdiction and the specific circumstances of each case. As a result, both companies and employees should exercise extreme caution and seek expert legal advice, such as that provided by Fernanda Vargas.
Moral Damage: Legal Presumption and How It Is Quantified (Reference to LISOS)
Moral damage is legally presumed in cases of discrimination related to medical leave, as established in Article 27.1 of Law 15/2022. Quantitative limits have been set, with some cases referring to compensation amounts ranging from €7,501 to €30,000. The amount awarded depends on several factors, including the individual’s circumstances, the duration of the medical leave, and the employer’s conduct.
Dismissal After Medical Discharge or Upon Reincorporation: Does Protection Still Exist?
Even after an employee is discharged or returns to work, the protection provided by the law does not automatically vanish. Although medical leave offers additional safeguards, dismissals based on objectively established reasons may still be upheld, provided that all legal criteria are strictly met. This highlights the importance of early and comprehensive legal advice.
What to Do If You Are Dismissed While on Medical Leave: 20 Working Days, Conciliation Notice, and Evidence Preservation
If you are dismissed during your medical leave, timely action is crucial. The period for contesting a dismissal is 20 working days from the date of notification, and you must first submit a conciliation notice to the respective regional labor authority. It is also essential to preserve all documents and communications that could help prove that the dismissal was rooted in discrimination or lacked objective justification.
Foreign Workers: Impact on Residency, Permit Renewal, and Unemployment Benefits
Foreign workers face additional challenges when dismissed during medical leave. Such dismissals can affect the renewal of their residence permits and may also influence their eligibility for unemployment benefits. Given these potential complications, it is vital for foreign workers to seek advice from legal experts in both labor and immigration law to ensure their rights are fully protected.
Checklist for Companies and HR: How to Document Causes Unrelated to Illness
To avoid disputes and potential legal challenges, companies must implement a thorough checklist to document that any dismissal decision is based on reasons unrelated to the employee’s illness. Essential steps include:
- Maintaining detailed internal communications records.
- Providing clear, objective justifications for downsizing or restructuring.
- Documenting any alternative measures considered and support provided to the employee.
- Consulting with legal experts to ensure compliance with current laws.
This thorough documentation not only protects the company but also supports its defense if the dismissal is later challenged as discriminatory.
Frequently Asked Questions and Legal Disclaimer
This section addresses common questions regarding dismissal during medical leave, clarifying issues related to deadlines, rights, and legal procedures. Remember that every case is unique, and legal interpretations may differ based on individual circumstances. It is highly recommended to consult with a legal expert, such as Fernanda Vargas, for personalized advice.
For further inquiries or to schedule a consultation, please contact Fernanda Vargas on WhatsApp or book an appointment via Calendly.