If you have been dismissed while on sick leave, do not assume that your employer was simply entitled to do so. Being on temporary incapacity leave does not automatically prevent a dismissal, but the employer must have a genuine reason, comply with the legal requirements and, above all, cannot use your illness or health condition as a discriminatory reason for terminating your contract.
At Barcelona Laboral we specialise in Employment Law in Barcelona and approach these cases from a very practical perspective: what the employer has done, what it can prove, what rights you have and which strategy best protects your position within the legal time limit. We do not start by promising a finding of nullity or compensation. We start by reviewing the full case file.
We want Barcelona Laboral to be Barcelona's leading employment law firm for employees and businesses that need a serious response to an employment dispute. That is why, when we receive a dismissal during sick leave, we review the letter, contract, payslips, collective agreement, timeline, communications with the employer and any element that may reveal whether the reason given is genuine or conceals a decision linked to illness.
And there is one fact that cannot wait: the time limit for challenging a dismissal is 20 working days from its effective date. Remaining on sick leave does not stop that time limit.
I have been dismissed while on sick leave: what we recommend doing at Barcelona Laboral
1. Keep the dismissal letter and evidence of when you received it.
2. Check the exact effective date of the dismissal.
3. If you sign to acknowledge receipt, you can add “not accepted” and the date.
4. Do not wait for medical clearance: the 20 working days continue to run.
5. Keep your contract, payslips, collective agreement, emails, WhatsApp messages and other relevant communications.
6. Make a note of when your sick leave began, when the employer became aware of it and what happened afterwards.
7. If the dismissal is disciplinary, we also check whether there was a prior hearing.
8. Before negotiating or filing the conciliation application, we calculate what you can actually claim.
Can an employer dismiss you while you are on sick leave?
Yes, an employer can notify you of a dismissal while you are temporarily incapacitated. However, being able to send the letter does not mean the dismissal will be held fair.
If you have been dismissed while on sick leave, you may have more rights than you think. Tell us about your case and we will explain, with no obligation, what options are available to you.
At Barcelona Laboral, we always separate these two questions:
- Could the employer terminate the contract at that time? In certain circumstances, yes.
- Is the reason used lawful, genuine, capable of being proven and unrelated to discrimination based on illness? That is what we need to assess.
An employer may, for example, issue a disciplinary dismissal for a serious and culpable breach that it can prove, or make an objective dismissal where the legal grounds exist and all requirements are met. However, it cannot use an apparent reason to conceal that the real reason is that the employee is ill, on sick leave or is likely to need time to recover.
Law 15/2022 strengthened protection against dismissal due to illness
Law 15/2022 on equal treatment and non-discrimination expressly includes illness or health condition among the grounds protected against discrimination.
This significantly changed the analysis of dismissals during sick leave.
We no longer need to build every case by trying to prove that an illness is equivalent to a long-term disability. If there are sufficient indications that the employer decided to dismiss because of the illness or health condition itself, we may claim a breach of the right to equality and seek a declaration of nullity.
However, being on sick leave does not mean automatic nullity
At Barcelona Laboral, we do not promote the false idea that “you were on sick leave, therefore the dismissal is null”. That is not legally correct.
We must demonstrate indications connecting the illness with the employer's decision. Among other factors, we assess:
- The proximity between notification of the sick leave and the dismissal.
- Messages or comments from managers about the illness.
- Pressure to return before medical clearance.
- Employer complaints about the cost or duration of the sick leave.
- A satisfactory employment record until the start of the incapacity.
- Sudden changes in the employee's appraisal.
- A vague dismissal letter or one that is inconsistent with the facts.
- A lack of evidence for the reason given.
- Comparison with employees in an equivalent situation.
The more objective evidence we have, the better we can build the claim.
Unfair dismissal or null dismissal: what can we claim?
When do we refer to unfair dismissal?
We can seek a finding of unfair dismissal where the employer does not sufficiently prove the reason given or fails to comply with relevant formal requirements.
That is why, at Barcelona Laboral, we never limit ourselves to asking “were you on sick leave?”. We also review how the dismissal was carried out.
In a disciplinary dismissal, we check, among other matters:
- Whether the letter sets out the facts with sufficient detail.
- Whether it identifies the effective date.
- Whether the facts are serious and culpable.
- Whether the employer genuinely has evidence.
- Whether the facts were time-barred.
- What additional requirements the collective agreement establishes.
- Whether there was an obligation to follow adversarial proceedings or other special safeguards.
- Whether the currently required prior hearing was held.
What happens if the dismissal is unfair?
As a general rule, the employer may choose between reinstating the employee or permanently terminating the employment relationship by paying the relevant compensation.
The general compensation is calculated at 33 days' pay per year of service, capped at 24 months' pay, without prejudice to the transitional regime applicable where service began before 12 February 2012.
We also review the reference salary, as it does not always simply correspond to the basic salary shown on the payslip.
When do we seek nullity?
Nullity is different. It arises where the dismissal breaches fundamental rights, constitutes discrimination or falls within certain objectively protected situations established by law.
If we provide reasonable indications that illness or health condition influenced the decision, the employer will have to justify that it acted for an objective, reasonable and sufficiently evidenced reason.
What does a null dismissal involve?
The general consequence is:
- Mandatory reinstatement.
- Payment of lost wages.
Where there has been a breach of fundamental rights, we may also seek compensation for the damage caused, including non-material damage, where there are grounds to do so.
An illness does not need to last six months to be protected
We do not apply an automatic six-month rule.
Law 15/2022 protects illness or health condition. A separate matter is determining whether there is also a disability for the purposes of European and Spanish anti-discrimination rules.
At Barcelona Laboral, we analyse both routes separately where the case requires it.
Disciplinary dismissal during sick leave: we now also review the prior hearing
Since the change in case law established by the Full Bench of the Social Chamber of the Supreme Court on 18 November 2024, employers must generally give employees the opportunity to defend themselves against the allegations before issuing a disciplinary dismissal, unless it cannot reasonably be required of the employer.
For that reason, this is now part of our standard analysis at Barcelona Laboral.
What we check before accepting a disciplinary dismissal as valid
- What facts are alleged against you.
- When they allegedly occurred.
- What evidence the employer has.
- What the collective agreement says.
- Whether any applicable special safeguards were respected.
- Whether you were allowed to defend yourself before the decision was made.
Objective dismissal during temporary incapacity
Sick leave also does not, by itself, prevent an objective dismissal.
An employer may rely on economic, technical, organisational or production-related grounds where they genuinely exist and the legal requirements are met.
At Barcelona Laboral, we pay particular attention to:
- The grounds explained in the notification.
- Whether documentation supports them.
- Why that particular employee was selected.
- The relationship between the reason given and the role.
- The compensation made available.
- The notice period or payment in lieu.
- Whether there are indications that the alleged objective reason in fact conceals the illness.
Objective dismissal for absences under the former Article 52.d) is no longer possible
The former Article 52.d) of the Workers' Statute was repealed in 2020.
Therefore, an employer cannot now rely on that former mechanism to terminate a contract simply because an employee has accumulated certain justified medical absences.
This does not mean that no dismissal is possible during sick leave: it means we need to know which specific grounds the employer is using and whether it can prove them.
Do I continue to receive sick pay if I am dismissed?
Yes. Termination of the contract does not automatically result in medical clearance or, by itself, end temporary incapacity.
However, we must distinguish the origin of the sick leave.
| Origin of the temporary incapacity | What happens after dismissal |
|---|---|
| Common illness or non-work-related accident | You continue to receive temporary incapacity benefits under the applicable terms. If you are subsequently entitled to contributory unemployment benefit, the period of temporary incapacity after termination may count as unemployment benefit used. |
| Work accident or occupational disease | You continue to receive the temporary incapacity benefit corresponding to the occupational contingency until medical clearance. If you are subsequently entitled to contributory unemployment benefit, that period of temporary incapacity after termination is not deducted from the benefit period. |
This difference can have a significant financial impact and is one of the issues we clarify when reviewing the case file.
You have 20 working days to challenge the dismissal
This is one of the most important points in this article.
The right to bring a dismissal claim expires after 20 working days.
Being on sick leave does not stop that time limit. We do not recommend waiting until you recover, receive medical clearance or know whether the employer has paid your final settlement correctly.
The conciliation application suspends the time limit
The prior conciliation application suspends the expiry time limit.
When the calculation must resume, you do not have another full 20 days: only the days that had not yet elapsed remain.
Every day matters. If someone calls us after 18 or 19 working days have already passed, our procedural options are far narrower than if we can prepare the case from the outset.
Where do we file a dismissal conciliation application in Barcelona?
In Catalonia, prior administrative conciliation is handled through the conciliation services of the Department of Business and Labour of the Government of Catalonia.
At Barcelona Laboral, we prepare the conciliation application with what may happen next in mind if the matter reaches the Labour Court. For us, it is not a routine form: it is the formal starting point of the claim strategy.
What we need to review your dismissal
When you contact Barcelona Laboral, we first try to organise the essential information.
The time limits for challenging a dismissal are short and every day matters. Contact our employment lawyers today and we will review your case file with you before it is too late.
- Dismissal letter.
- Contract and addenda.
- Latest payslips.
- Length of service.
- Collective agreement.
- Relevant communications with managers or human resources.
- Previous disciplinary sanctions, if any.
- Date on which the employer became aware of the sick leave.
- Timeline of events before the dismissal.
- Strictly necessary medical documentation if relevant to the claim.
We do not need to unnecessarily intrude on your medical privacy. We use health information that is genuinely legally relevant to the dispute.
Why entrust your dismissal case to Barcelona Laboral?
At Barcelona Laboral, we do not treat a dismissal as a simple compensation calculation.
An apparently correct letter may conceal a reason the employer cannot prove, breaches of the collective agreement, procedural defects, the absence of a prior hearing or indications of discrimination that completely change the nature of the claim.
That is why we handle the case file in this order:
- We immediately calculate the days available.
- We analyse the dismissal letter line by line.
- We reconstruct the timeline between the sick leave and the employer's decision.
- We review the contract, payslips and collective agreement.
- We check whether the alleged reason can be proven.
- We look for indications of discrimination based on illness or health condition.
- In disciplinary dismissals, we review the prior hearing.
- We calculate compensation, final settlement and outstanding amounts.
- We design the conciliation and negotiation strategy.
- If no suitable agreement is reached, we pursue the claim before the Labour Courts.
We want people who need an employment lawyer in Barcelona to think of Barcelona Laboral. We achieve this not by promising results, but by examining every case rigorously, explaining the options clearly and building a strategy from the first document to the resolution of the dispute.
What happens at conciliation?
Prior conciliation is an opportunity to resolve the dispute before trial.
At Barcelona Laboral, we do not accept just any agreement simply to avoid court proceedings. Before negotiating, we calculate the employee's legal position and the financial implications of accepting or rejecting the proposal.
We may encounter, among other scenarios:
- Acknowledgement of unfair dismissal.
- A compensation agreement.
- Payment of outstanding amounts.
- No agreement.
- Failure of one party to attend.
If there is no reasonable solution and sufficient grounds remain, we continue with the claim.
If there is no agreement: Labour Court
The claim must be filed within the time remaining after conciliation.
In it, we set out the facts and the classification we are seeking: not fair dismissal, but unfair dismissal or nullity depending on the circumstances.
Where there has been a breach of fundamental rights, we also build the necessary prima facie evidence and assess any applicable damages claim.
Dismissal while on sick leave due to a work accident
Sick leave resulting from a work accident or occupational disease also does not automatically make a dismissal null.
However, it may raise other issues that we need to consider together:
- Possible retaliation for asserting rights.
- Health and safety breaches.
- Benefit surcharges where the requirements are met.
- Damages.
- Proceedings before the Labour Inspectorate.
At Barcelona Laboral, we separate each type of liability so as not to confuse concepts or promise claims that have no legal basis.
Pregnancy, birth, work-life balance and other specially protected situations
There are situations in which the Workers' Statute provides enhanced protection against dismissal, including certain circumstances related to pregnancy, birth and childcare, and the exercise of work-life balance rights.
If a specially protected situation exists in addition to sick leave, we identify it from the first consultation because it may substantially change the strategy.
Employees with disabilities
Where there is also a disability, we analyse the specific anti-discrimination rules and, where applicable, the employer's possible obligation to make reasonable adjustments.
We do not limit this assessment solely to whether there is an administrative certificate of 33%. The legal concept of disability may require an examination of the actual limitations and their duration under the applicable framework.
The collective agreement can change the outcome
A common mistake is to assess a dismissal solely under the Workers' Statute.
At Barcelona Laboral, we review the collective agreement because it may include:
- Additional requirements for imposing sanctions or dismissing employees.
- Prior procedures.
- Specific safeguards.
- Improvements to temporary incapacity benefits.
- Rules on salary supplements.
- Its own disciplinary procedures.
A collective agreement clause can become an important argument, and we do not want to discover it after the claim has been filed.
Mistakes we see after a dismissal during sick leave
Waiting for medical clearance
The 20 working days do not wait.
Assuming the dismissal is null
We need indications and an evidential strategy.
Assuming that we can only seek unfair dismissal
Since Law 15/2022, we must also analyse possible discrimination based on illness.
Not reviewing the prior hearing
In a current disciplinary dismissal, this is one of the checks we carry out from the outset.
Signing agreements without knowing the correct compensation
Before accepting an amount, we verify the salary, length of service and legal scenario.
Filing a generic conciliation application
The procedural strategy begins before reaching court.
Barcelona Laboral, employment lawyers in Barcelona for employees and businesses
At Barcelona Laboral, we want to build a long-term relationship with Barcelona. We do not want to be merely the firm you call when there is already a court case; we want to be the team that employees and businesses consult before an employment issue becomes much bigger.
We handle matters relating to dismissals, disciplinary sanctions, wage claims, changes to employment conditions, workplace harassment, work accidents, incapacity, negotiation, collective disputes and workplace issues for businesses.
Understanding both sides of the employment relationship helps us anticipate how the other party may approach the dispute and which documents will truly matter.
If you have been dismissed while on sick leave in Barcelona, we can review your case today. The sooner we have the letter and the timeline, the sooner we can establish which options remain open within the legal time limit.
Frequently asked questions about dismissal while on sick leave in Barcelona
Can I be dismissed while on sick leave?
Yes, an employer can notify you of a dismissal during temporary incapacity. At Barcelona Laboral, we analyse whether the reason is genuine, whether all requirements have been met and whether there are indications that illness or health condition was the real reason for the decision.
At Barcelona Laboral, we have spent years representing employees dismissed while on sick leave. Request your first consultation and we will help you understand whether your dismissal may be declared null or unfair.
Does being on sick leave automatically make the dismissal null?
No. Law 15/2022 protects against discrimination based on illness, but we must establish sufficient indications. If the employer proves a genuine reason unrelated to health, the mere fact of being on sick leave does not make the dismissal null.
What is the difference between unfair and null dismissal?
In unfair dismissal cases, as a general rule, the employer may choose between reinstatement or compensation. In a null dismissal, the general consequence is mandatory reinstatement with payment of lost wages. Where fundamental rights have been breached, we may also assess a damages claim.
How long do I have to make a claim?
You have 20 working days from the effective date. Remaining on sick leave does not stop that time limit. At Barcelona Laboral, we recommend reviewing the letter immediately to avoid losing days for making a claim.
Where is the conciliation application filed in Barcelona?
Prior administrative conciliation is handled through the conciliation services of the Department of Business and Labour of the Government of Catalonia. We prepare the application with any possible subsequent claim in mind as well.
Does the conciliation application reset the time limit to zero?
No. It suspends the expiry period and, when it resumes, only the days that had not elapsed remain. That is why we calculate the exact time limit before filing any document.
Do I continue to receive sick pay after dismissal?
Temporary incapacity may continue after termination. Its amount and the subsequent effect on contributory unemployment benefit depend on whether it results from common or occupational contingencies.
Must the employer hear me before a disciplinary dismissal?
For current disciplinary dismissals, Supreme Court case law generally requires a prior hearing so that the employee can defend themselves against the allegations, subject to the exception where it cannot reasonably be required of the employer.
Do I have to sign the dismissal letter?
You can sign solely to acknowledge receipt and record the date and your disagreement. If you are also given agreements, waivers or documents with additional content, we recommend reviewing them before giving your acceptance.
What documents should I send to Barcelona Laboral?
We normally begin with the dismissal letter, contract, latest payslips, collective agreement, length of service and relevant communications with the employer. We will then tell you if we need any additional documentation.
Why choose Barcelona Laboral?
Because we want to be your trusted employment law firm in Barcelona. We analyse the entire dispute, not just compensation: time limits, the letter, collective agreement, evidence, discrimination, prior hearing, negotiation and, where necessary, representation before the Labour Court.