What happens if I am fired while on medical leave?

Being dismissed during a temporary incapacity (IT) is a delicate situation, but it is not always illegal. In Spain, dismissal while on medical leave is not automatically void: it can be void, unfair, or fair depending on the actual reason and the evidence available.

 Below we explain, based on recent legal provisions and doctrine, what rights you have, who pays your leave after dismissal, the deadlines for claiming in Murcia, and how we can assist you at GVC Abogados.

Is it legal for me to be dismissed while on leave?

Yes, the law allows the termination of a person's contract while on leave if there is a real objective or disciplinary cause unrelated to their IT. The decisive factor is the reason for the dismissal and whether it is related to your illness/health condition.

• Void dismissal: when the dismissal has a discriminatory cause due to your illness or health condition (*Ley 15/2022*, Equality of Treatment and Non-Discrimination) or due to disability according to the doctrine of the CJEU. The nullity requires immediate reinstatement and payment of wages during the processing period.
• Unfair dismissal: if the company does not prove a real cause or fails to meet formal requirements. It entails reinstatement or compensation (33 days/year, with limits and transitional rules of 45/33 days depending on seniority).
• Fair dismissal: if the company proves a sufficient objective or disciplinary cause unrelated to the IT.

Important: the fact that the dismissal occurs while you are on leave does not make it void by itself. It must be proven that there is a link between the leave/illness and the termination decision, or the existence of disability or discrimination.

Key law and jurisprudence (updated 2024)

• Repeal of the “dismissal for absenteeism” in art. 52.d ET: since Royal Decree-Law 4/2020 (18/02/2020), it is no longer possible to dismiss objectively for justified intermittent absences.
• *Ley 15/2022*, on Equality of Treatment and Non-Discrimination: protects against discrimination on the grounds of illness or health condition and reinforces the reversal of the burden of proof when there are indications.
• CJEU doctrine (case C‑395/15, Daouidi): a lasting limitation can be equated to disability, which prohibits dismissals for that reason. Spanish courts have been applying that not all IT is disability, but if the limitation is prolonged and relevant, it may be.
• Recent Spanish judicial doctrine (2023–2024): most rulings confirm that dismissal during IT is not “automatically” void; it is required to prove indications of discrimination or a link between the dismissal and the illness. If there is no cause, it is usually declared unfair.

Who pays for the leave after dismissal and how much do I receive?

• While you are on temporary incapacity (IT) following the termination of the contract, you continue to receive the temporary incapacity benefit until medical discharge. The payment is transferred to the managing entity: INSS or Mutual, depending on the contingency.
• If the IT is due to common contingencies: after dismissal, the amount is equivalent to the unemployment benefit you would be entitled to. That time is deducted from your unemployment benefits as consumed when you later apply for it.
• If the IT is due to professional contingencies (work accident or occupational disease): the Mutual assumes direct payment, generally 75% of the regulatory base.
• Upon receiving medical discharge: if you meet the requirements, you can apply for unemployment benefits; the period of IT following dismissal will have deducted days from your unemployment benefits.

Severance Pay, Final Settlement, and Other Rights

• Final settlement: you must be paid any outstanding salaries, unused holidays, and proportional parts of extra payments, even if you are on leave.
• Severance pay: it only exists if the dismissal is objective (20 days/year with a cap) or if it is declared unfair (33/45 days depending on brackets). In the case of null dismissal, there is reinstatement and processing wages.
• Notice: in the case of objective dismissal, it is 15 days or its equivalent in salary if not granted. In disciplinary dismissals, there is no notice.

Deadlines and Steps to Claim in Murcia

• Key deadline: 20 working days from dismissal to contest. This is a limitation period.
• Conciliation document: you must present it before the Mediation, Arbitration and Conciliation Service/Unit (UMAC) of the Region of Murcia before filing a lawsuit. It can be processed electronically.
• Lawsuit before the Social Court: if there is no agreement, a lawsuit is filed. In the case of null dismissal due to discrimination, reinstatement and processing wages are requested.
• Evidence: dismissal letters, sick leave/discharge documents, internal communications, chronology of events, witnesses, comparisons with other workers, etc. The temporal proximity between the sick leave and the dismissal may be an indication, but it is not sufficient on its own.

Practical Recommendations

• Do not sign the final settlement as “received in agreement” if you do not agree. You can sign “not in agreement”.
• Gather all medical and employment documentation. Keep emails and messages.
• Request a company certificate and updated work history.
• Consult as soon as possible with a labour lawyer to assess nullity or unfairness and prepare the evidentiary strategy.

Special Cases

• Temporary contracts: if the contract ends fraudulently or without a real cause, it can be challenged as dismissal.
• Collective objective causes and ERES: these can also be challenged if they conceal discrimination based on health or if they fail to meet legal requirements.
• Pregnancy, risk during pregnancy, and maternity/paternity: there is enhanced protection and a presumption of nullity if the dismissal is related.

GVC Lawyers: expert defence in dismissals and medical leave in Murcia

At GVC Lawyers (García Valcárcel & Cáceres), located at Plaza Fuensanta, 3 – 6ºB, 30008 Murcia, we combine over 25 years of experience and a rigorous approach to challenging dismissals in medical leave situations. We analyse whether nullity due to discrimination (*Ley 15/2022* - Law 15/2022) or unfair dismissal applies, quantify compensations, and accompany you in UMAC and the Social Court.

• Feasibility assessment and evidentiary strategy from the first consultation.
• Comprehensive management of the conciliation document and claim.
• Multidisciplinary team with legal experts and, when necessary, medical experts.

If your leave results from a workplace accident or possible medical negligence, our team specialised in civil liability and medical negligence can claim the appropriate compensation.

We also assist you with family and inheritance matters

In addition to Labour Law, we are a law firm in Murcia with a strong practice in Private and Public Law. If you are looking for family law attorneys or inheritance lawyers in Murcia, GVC Lawyers offers you close advice and tailored solutions in divorces, custody, successions, and partitions, as well as in obligations and contracts, real estate, commercial law, and immigration.

Conclusion and contact

If you have been dismissed while on medical leave, act quickly: the deadline to claim is 20 working days. We can help you achieve nullity due to discrimination when applicable or unfair dismissal with the maximum compensation. Contact GVC Lawyers in Murcia for an immediate review of your case and a solid action plan.