Carrying out activities while on sick leave does not, in itself, justify disciplinary dismissal

The High Court of Justice of Asturias (Social Chamber) has upheld the finding of unfair dismissal in the case of an employee who, while on temporary incapacity leave due to lower back pain, attended on several occasions a vehicle dealership run by her partner and carried out certain minor tasks there.

The Court considered that the employee’s involvement was occasional and fell within the scope of family assistance. The activities observed were not incompatible with her recovery, nor did they establish that she had simulated her illness or culpably delayed her recovery.

The judgment therefore highlights an important point in the management of temporary incapacity: being on sick leave does not require an employee to remain completely inactive, and the mere fact that an employee carries out certain activities during that period does not, by itself, amount to a disciplinary breach.

Background to the dispute

The employee had worked since 2007 as a manager for a company engaged in the retail distribution and sale of food, household-care and personal-care products.

At the end of 2023, she commenced a period of temporary incapacity due to lower back pain.

Some months later, the employer hired a private detective agency to monitor her activities. The investigation found that, on certain days, the employee attended the vehicle sales business owned by her partner and, on some occasions, carried out activities connected with that business.

On the basis of the detective report, the employer dismissed her on disciplinary grounds. The company argued that her conduct amounted to very serious misconduct, including simulation of illness, engaging in activities that were harmful to her recovery while on temporary incapacity leave, and providing services for her partner’s business.

The employee challenged the dismissal, seeking a declaration of nullity on the ground that it was discriminatory on account of illness and, in the alternative, a finding of unfair dismissal.

The court of first instance rejected the claim for nullity but held that the dismissal was unfair. The employer appealed, and the High Court of Justice of Asturias dismissed the appeal and upheld the decision.

Activities during temporary incapacity do not automatically amount to misconduct

One of the central issues was whether the activities carried out by the employee during her sick leave were incompatible with her medical condition.

The Court found no evidence that she had simulated her illness, that she had already recovered, or that she had failed to comply with medical instructions.

Nor was it established that the activities in question had caused harm or delayed her recovery. The employee also had a pre-operative appointment scheduled for a subsequent surgical procedure, which was consistent with the continuation of the medical condition.

Accordingly, the relevant question is not simply whether an employee carries out some form of activity while on sick leave. The key issue is whether that activity is objectively incompatible with the functional limitations giving rise to the temporary incapacity or whether it is capable of prejudicing recovery.

The importance of comparing the activity performed with the employee’s medical limitations

The judgment places particular emphasis on the difference between the physical demands of the employee’s usual role and the activities observed at her partner’s dealership.

In her ordinary job, the employee was required to work full shifts involving prolonged standing and the frequent lifting of loads.

By contrast, the conduct recorded by the investigators mainly consisted of driving, opening or closing vehicles, remaining at the premises and, on an isolated occasion, showing a car to third parties.

In the Court’s view, those activities did not involve physical demands comparable to those of her normal role and did not demonstrate an effort capable of adversely affecting the recovery of her lower back condition.

This reasoning underlines that temporary incapacity must be assessed by reference to the employee’s functional ability to perform the specific duties of his or her occupation, rather than as a general obligation to cease all ordinary daily activity.

Occasional assistance in the partner’s business

Another relevant factor was the nature and intensity of the activity carried out at the dealership.

The Court did not consider that the employee was performing a regular or genuine work activity for her partner’s business. Instead, the assistance was regarded as occasional and limited in scope, without exceeding the boundaries of sporadic family assistance.

Her mere presence at the premises, together with the occasional performance of certain tasks connected with the business, was therefore insufficient to establish a breach of the duty of good faith.

No unfair competition

The employer also alleged that the employee had engaged in unfair competition.

The Court rejected that argument. The employer operated in the retail sale of food, household-care, personal-care and animal-care products, while the employee’s partner was engaged in the sale of motor vehicles.

There was therefore no overlap in the relevant market or business activity capable of establishing competitive conduct between the two businesses.

Outcome: unfair dismissal

The finding of unfair dismissal was upheld. The employer must therefore choose between reinstating the employee in her former position, on the same terms and with payment of the applicable back pay, or paying the compensation set by the court, amounting to EUR 33,890.

In addition, the employer must pay EUR 1,670 in respect of accrued but untaken holiday.

What should employers assess before taking disciplinary action during sick leave?

The judgment illustrates the importance of avoiding automatic conclusions where an employer discovers that an employee is carrying out activities while on temporary incapacity leave.

Personal, family-related or even relatively active conduct during sick leave does not necessarily establish simulation of illness or a breach of contractual good faith.

• the functional limitations underlying the temporary incapacity;
• the physical and functional demands of the employee’s normal role;
• the nature, frequency and intensity of the activities observed;
• whether those activities are objectively capable of harming or delaying recovery;
• whether there is evidence of simulation of illness or non-compliance with medical instructions; and
• where unfair competition is alleged, whether there is genuine competitive overlap between the two business activities.

A private detective report may be relevant evidence of the facts observed, but it does not determine the legal characterisation of those facts. What ultimately matters is whether the conduct established by the evidence is incompatible with the employee’s medical condition or otherwise constitutes a sufficiently serious breach to justify disciplinary dismissal.

In this case, the occasional nature of the employee’s assistance in her partner’s business, the absence of any adverse effect on her recovery and the lack of competition between the two businesses led the courts to conclude that the conduct was not sufficiently serious to justify disciplinary dismissal.