What happens when the employee does not inform the company of his/her medical leave? Dismissal?

Unjustified absences from work can be grounds for disciplinary dismissal, but what happens when the worker is on temporary disability (TI) and does not properly communicate his situation to the company? A recent decision of the Superior Court of Justice (TSJ) of Asturias clarifies how these cases should be handled and what are the limits that differentiate a null dismissal from an unfair dismissal.

The case: dismissal for failure to report sick leave

The issue before the Supreme Court of Asturias revolved around the dismissal of a worker who did not return to her job after the end of her IT, nor did she communicate the reasons for her absence. The mutual insurance company had issued a medical discharge, but this was cancelled the following day. The company, not having any news from the worker, sent her a burofax urging her to return to work or to justify her absence. In the absence of any response, the company proceeded to dismiss her for unjustified absences.

After the dismissal, the employee filed a lawsuit requesting that the dismissal be declared null and void on the grounds that it was discriminatory. The labor court, in the first instance, rejected this request, but declared the dismissal unjustified, a decision that led the company to opt for the reinstatement of the employee. Dissatisfied, the worker filed an appeal for annulment before the Supreme Court of Asturias, insisting that her dismissal should be considered null and void and discriminatory.

What has the Supreme Court of Asturias said about this dismissal: Unfair, but not null and void.

The Supreme Court of Asturias analyzed the case from the perspective of possible discrimination on the basis of illness. The court recalled that, although illness or health condition does not constitute a cause of discrimination under the Constitution or the Workers’ Statute, the entry into force of Law 15/2022 explicitly established the right not to suffer discrimination on the grounds of illness or health condition.

In this context, a sick leave can be considered as an objective indication of discrimination, which reverses the burden of proof, requiring the company to demonstrate the rationality and justification of its termination decision. In this particular case, the SCJ determined that the company had adequately justified the dismissal based on six unjustified absences, which the worker did not justify despite having received a formal request from the company.

In addition, the court pointed out that it was not proven that the company had knowledge of the cancellation of the medical discharge nor that the worker was still in a TI situation. The Court emphasized that the mere issuance of a medical leave report does not exempt the worker from the obligation to communicate with due diligence to the employer the circumstances that prevent him from going to work.

Existence of a real and objective cause for the termination of the contract

In view of these facts, the Supreme Court concluded that there was a real, objective and reasonable cause that justified the termination of the employment contract, thus ruling out the existence of a violation of fundamental rights. For this reason, the dismissal was declared unfair, but not null and void, and no compensation for damages was awarded.

Conclusion: communication, a duty of the worker in a TI situation

This ruling of the Supreme Court of Asturias highlights the importance of communication between the employee and the company, especially when the employee is on sick leave. The existence of a medical leave report does not exempt the employee from his obligation to inform the company about his situation. Failure to do so may result in a dismissal which, although it may be declared unfair, will not necessarily be considered null and void or discriminatory.

For human resources departments and employers, this ruling reinforces the importance of acting in accordance with current regulations and maintaining an open channel of communication with employees. At the same time, employees should be aware of their duty to report and justify their absences to avoid situations that could lead to labor conflicts.

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