Medical leaves due to temporary disability occur when the worker, either due to an accident or illness, is unable to carry out his or her work activity temporarily. For this reason, the Spanish social protection system grants them the right to continue receiving a financial benefit while the medical process lasts and until your reinstatement.
Although the right to medical leave is regulated in different fundamental Spanish laws, such as the Constitution itself or the Workers’ Statute, in some companies it is not well regarded for the employee to request it. That’s when some practices begin and treatment that can be considered retaliation against the worker himselfas labor lawyer Miguel Benito Barrionuevo warns.
These behaviors can range from beginning to pressure the employee for having been on sick leave to making changes to their tasks, job, or schedule. However, just as labor law protects companies from negative employee behavior, employees also have a series of rights that companies must respect.
The company cannot fire a worker for medical leave.
“You have to understand that no one can take action against you for having been on leave or having been sick,” recalls the lawyer. A statement that is based on the prohibition of discrimination due to illness regulated in Law 15/2022, of July 12, comprehensive for equal treatment and non-discrimination. Specifically in article 2.1, which establishes “the right of everyone to equal treatment and non-discrimination.” regardless of (…) illness or health condition“.
This is reflected in labor law in articles 53.4 and 55.5 of the Workers’ Statute, which states defined the nullity of discriminatory dismissalincluding those due to health or disability reasons. However, it is necessary for the worker to prove that the termination of the contract is due to these causes, and not to a very serious fault on the part of the company, in which case disciplinary dismissal would be justified.
Substantial modifications must be justified
However, few know that the Workers’ Statute also prohibits substantial modifications to working conditions, including changes in hours. According to article 41, the company may only make these types of changes unilaterally and without the consent of the worker when they are justified by “economic, technical, organizational or production reasons“.
If these reasons can be proven, the company may make changes to the working day, schedule, time distribution, or even the amount of salary. But you must notify both the employee and his legal representatives. at least 15 days before its effectiveness. Otherwise, the worker has the right to request termination of the contract and the corresponding compensation.
It is important to collect evidence to prove discrimination
Something similar occurs in the event that the company decides to increase the employee’s workload, including tasks that do not correspond to them by contract. In such cases, what experts recommend is to accept these tasks and collect all possible evidence to demonstrate that they do not fall within the obligations of your job. With this information, you can file a formal claim with Human Resources or even sue the company if a solution is not received.
Both in this situation and in previous ones, what labor lawyers recommend is to save the communications and documents that prove said discriminatory practices motivated by medical leave and use them to request the cessation of said behaviors. Otherwise, “you could request a self-dismissal, a compensated departure from the company, to collect your compensation and the right to unemployment“says Miguel Benito Barrionuevo.