The termination of an executive during a period of medical leave is one of the most sensitive and controversial situations in the context of special labor relations involving senior management. The overlap between a period of temporary incapacity and termination of employment raises significant questions regarding the validity of the termination and the possible violation of fundamental rights.
Unlike the general employment regime, where protections are more robust, senior executives are in a unique legal position: their special employment relationship allows the company virtually unrestricted freedom to terminate their employment, but this does not mean that the company can act with absolute discretion while the executive is on leave.
This article analyzes the legal framework governing the termination of senior executives while on medical leave, constitutional doctrine regarding discrimination based on illness, procedural safeguards for executives, and defense strategies when termination occurs under these circumstances.
Legal Framework for Resignation from Senior Management Positions
Article 11 of Royal Decree 1382/1985 provides that either party may terminate the special employment relationship for senior management by giving notice to the other party with three months’ advance notice.
This termination, also known as dismissal at will or ad nutum, allows the company to terminate the executive’s employment without having to cite just cause, paying the statutory severance pay of seven days’ pay per year worked, capped at six months’ pay, or the amount agreed upon in the contract if it is higher.
Constitutional Limits: The Prohibition on Discrimination
Although an employee is free to resign for any reason, this right cannot be exercised in a manner that violates fundamental rights. The Constitutional Court has established settled case law regarding the prohibition of discriminatory dismissals, which also applies to senior management.
Article 14 of the Constitution prohibits discrimination based on any personal or social condition or circumstance, expressly including illness or disability. A dismissal based on the executive’s medical leave constitutes prohibited discrimination and must be declared null and void, not merely unjustified.
Difference Between Nullity and Unfairness of Dismissal
It is essential to distinguish the consequences based on the classification of the termination:
Invalid Dismissal
A termination is void when it is proven that the actual reason for the termination is the employee’s medical leave, that is, there is discrimination based on illness. The consequences are:
• Immediate mandatory reinstatement of the executive under the same conditions
• Payment of back pay from the date of termination until the date of actual reinstatement
• Additional compensation for the violation of fundamental rights, if requested
• Legal costs to be borne by the company
Unfair Dismissal
If no discriminatory motive is proven, the termination is simply unjustified, and the executive is entitled to statutory or contractually agreed-upon severance pay, with no right to reinstatement unless the company voluntarily decides to do so.
Burden of Proof: Reversal of the Burden of Proof
When an executive alleges discrimination based on illness, the reversal of the burden of proof established in Article 181.2 of the Law Regulating Labor Jurisdiction applies:
Phase 1 – Plaintiff (Manager): The plaintiff must provide reasonable evidence of discrimination. Full proof is not required; it is sufficient to demonstrate the temporal coincidence between the leave of absence and the termination, along with any additional evidence that raises a suspicion of causation.
Phase 2 – Defendant Company: If the executive provides sufficient evidence, it is up to the company to conclusively prove that the termination is based on objective grounds entirely unrelated to the executive’s medical condition, and that the decision would have been made even if the executive had not been on sick leave.
Signs of Discrimination: What Factors Are Relevant
Case law has considered the following to be sufficient evidence of discrimination:
Close temporal proximity: dismissal announced during sick leave or immediately after being cleared to return to work.
Lack of notice: If the contract requires three months’ notice and the company terminates the executive’s employment while he or she is on leave without observing that period, this suggests that the leave precipitated the decision.
Company comments or statements: emails , conversations, or statements by executives suggesting annoyance or concern about the executive’s departure.
Pattern of behavior: If the company has fired other executives while they were on medical leave, this suggests a discriminatory company policy.
Absence of prior negative evaluations: If the manager’s performance was satisfactory up until the termination, and the termination occurs during that period, the grounds for termination are questionable.
Objective Business Justification: What the Company Must Prove
To rebut the presumption, the company must demonstrate objective, actual causes unrelated to the illness:
Documented corporate restructuring: reorganization plans prior to the termination, board minutes approving the elimination of the position, and financial documentation justifying the measure.
Previous unsatisfactory performance: negative evaluations documented prior to termination, formal warnings, and repeated failure to meet objectives.
Decision Prior to Medical Leave: Prove that the decision to terminate employment was made before the medical leave began, even if the notification was issued later.
Change in business strategy: if a change in the business model or strategy that renders the position unnecessary is demonstrated, although it must be shown that this is not merely a pretext.
Special Circumstances: Recurring Absences and Long-Term Absences
Repeated sick leave
If an executive has taken multiple sick leaves within a short period of time, the company may legitimately argue that the inability to consistently rely on the executive for strategic duties justifies termination. However, the company must demonstrate that it attempted alternative measures (redistribution of duties, job accommodation) before terminating the employee.
Long-term absences
When an employee’s leave of absence lasts for months, case law is more likely to accept the company’s justification for termination based on organizational needs: a management position cannot remain vacant indefinitely. But even so, the company must demonstrate that it considered alternatives before terminating the employee.
Litigation Strategy for a Dismissed Executive
If an executive is terminated during or immediately after a medical leave, he or she must:
1. Thoroughly document the sick leave: medical certificates , doctors’ reports, and proof of attendance at medical appointments. All documentation that substantiates the reality and severity of the condition.
2. Collect company communications: emails , messages, and conversations that demonstrate the company’s awareness of the resignation and its reactions to it.
3. Provide evidence of previous satisfactory performance: positive evaluations , congratulatory emails, bonuses received, and promotions received.
4. Request information from the company: via certified fax, request an explanation of the actual reasons for the termination and documentation supporting them.
5. File a lawsuit seeking a declaration of nullity: expressly request that the dismissal be declared null and void on the grounds of discrimination, not merely that it was unjustified. It is essential to make this request specifically.
Frequently asked questions
Can my employer fire me while I’m on sick leave?
Technically, yes, the employee is free to withdraw. But if the medical leave is the actual reason for the termination, the termination is void on the grounds of discrimination. The company must demonstrate that there are objective reasons unrelated to the illness.
What do I need to prove in order for the termination to be deemed invalid?
You only need to provide reasonable evidence of discrimination: a temporal coincidence, the absence of prior negative evaluations, or comments from the company regarding your absences. The company must then prove that it had objective grounds.
What do I get if my termination is declared invalid?
Immediate reinstatement to your position, back pay from the date of termination until the effective date of reinstatement, possible additional compensation for the violation of fundamental rights, and costs of the proceedings.
How long do I have to file a claim?
One year since the termination. This is a non-extendable statute of limitations, so it is essential to act quickly and seek expert advice from the very beginning.
Do you need legal advice on this matter? At ACL Boutique Legal, we offer you a personalized analysis of your situation and a legal solution tailored to your case. You can contact us by email at info@aclboutiquelegal.com, or by phone at 931 820 179 or 671 377 204 (WhatsApp). Our offices are located at Carrer del Tenor Viñas, 4–6, 3rd floor, apt. 2, Sant Gervasi–Turó Parc, 08021 Barcelona, and we also offer appointments in Sabadell.