If I am on sick leave and I am dismissed, am I entitled to any benefits?

All employees have the same concerns: "What happens if I get fired while I am on sick leave, do I still get paid, am I entitled to unemployment benefits? The truth is that it is not surprising, especially given the current situation and the existing job instability.

With the aim of resolving any doubts you may have regarding this key issue in employment law, here we are going to try to answer these three questions and clarify any other issues that are particularly relevant. So, either because you are on sick leave or because you want to think ahead, pay attention.

Situation according to type of leave

The first thing to say at this point is that in drafting these articles we have used, on the one hand, the content of article 17 of Royal Decree 625/1985 of 2 April 1985, which in turn implements Law 31/1984 of 2 August 1984 on unemployment protection and, on the other, article 222 of Royal Legislative Decree 8/2015 of 30 October 2015, which approves the revised text of the General Law on Social Security. Both are the bases of labour law in this area in Spain.

Having made this clarification we would like to point out, in order to know what rights the worker has in the event of becoming unemployed due to dismissal or termination of the contract while on sick leave, that it is essential to know whether the temporary incapacity is caused by common contingencies (common illness, accidents outside the activity, etc.) or professional contingencies (illnesses derived from the activity, accidents in the workplace, etc.). The working conditions involved could be important in the event of a dispute.

In addition, it is also plausible that, while receiving unemployment benefits, you may be on sick leave. Here we will explain what happens in each case:

What happens if you become unemployed while on sick leave due to a common contingency?

In this case, the worker automatically becomes unemployed as soon as their contract is terminated or they are dismissed. In this sense, he/she will continue to receive the benefit corresponding to his/her temporary incapacity. However, the maximum amount will be the amount that corresponds to him using the unemployment benefit as a reference until the period of sick leave ends. When this happens, you will continue to receive this benefit as normal as long as you are entitled to it.

This means, in short, that if you are entitled to €900 a month while you are working and on sick leave, you may be entitled to less when you are unemployed. For example, €750, if that is what you are entitled to.

This situation has a peculiarity that is detrimental to the worker. Although you will continue to receive the normal amount, although it may be a little less, the time that elapses between the end of the contract or the dismissal until you are discharged will count as part of what you are entitled to as unemployment benefit, even if you do not apply for it immediately. In fact, the SEPE will pay contributions for you instead of your employer.

For example, imagine that you are entitled to 24 months of unemployment benefit, i.e. the maximum. When you become unemployed, you remain on sick leave for two more months. When you are discharged, even if you have not applied for unemployment benefit, you will still have 22 months left to collect it.

What happens if you become unemployed while you are on sick leave due to an occupational contingency?

This case is different from the previous one, as the working conditions are the ones that triggered the sick leave. Although they are related in the sense that in both cases the worker is entitled to receive their temporary incapacity benefit until they are medically discharged, in the case we are dealing with here, what has been overpaid from the moment of becoming unemployed is not deducted from the unemployment benefit. Taking the above example as a reference, the moment the specialist told you that you could return to work would be the moment when the 24 amounts to which you are entitled would start to count.

What happens if you go on sick leave while receiving unemployment benefit?

The first thing we must do, before addressing this issue in depth, is to make a small distinction that will mark everything we comment on. It is not the same if the medical leave is the result of a problem that occurred while the contract was in force as if it were the result of an unrelated event.

If it was a relapse of a previous problem, you would be entitled to receive temporary incapacity benefit at the same rate as the unemployment benefit you were receiving. In the event that you finish the full period of benefit to which you are entitled, you would continue to receive the same amount until the doctor discharges you.

In the other case, i.e. if the medical leave is not the result of a relapse of the problem that occurred during the term of the employment contract, you would continue to receive the benefit at the same rate as before. However, if you reach the end of this period and you are still not discharged, you will continue to receive it monthly, but at an amount of 80% of the Public Indicator of Multiple Effect Income (IPREM).

Lawyers specialising in employment law state that what you must be clear about in this case, regardless of the case that leads to unemployment, is that under no circumstances will you experience a period of extension in the enjoyment of the benefit. This is because the benefit, from the moment the SEPE resolves it at the time of your request, is what it is and cannot undergo any variations.

You should also bear in mind that the SEPE will make the corresponding contributions to the company in the same way as the company would do. In addition, it also assumes the 35% by which the employee's contributions are reduced.

Conclusions

It is clear, after all that we have discussed in this article, that the differentiating factor when it comes to becoming unemployed while on sick leave is the contingency that causes it. If it is caused by an accident or illness at work, your rights will be greater than if it is caused by a common accident or illness. In fact, even if you are receiving unemployment benefit, you will be entitled to receive, on the same basis, what you are entitled to for temporary incapacity.

In any case, what you can be sure of is that you will continue to receive the amount that corresponds to you in each case, i.e. you will not be left with nothing no matter what situation you are in. In other words, you will not be left with nothing no matter what situation you are in. In addition, you should also add any compensation to which you may be entitled, although this is a separate issue.

We hope we have been of help to you in resolving such a complicated issue as the one we have covered in this article. From now on, we are sure that, whenever you talk about or have to face the issue, you will do so with less fear and knowing very well what your rights as a worker are. And, if you have any further doubts, lawyers specialising in employment law can answer them.

 If you would like more information, ask for a consultation with any of our specialist dismissal lawyers. We are available online anywhere in Spain.