Can I look for a new job while on sick leave?

It is not always easy to quit a job without finding a new one. Therefore, it is not surprising that active employees regularly survey the market in search of offers that improve their working conditions. But can they do it by taking advantage of a sick leave? It seems like.

He Higher Court of Justice (TSJ) of Catalonia ruled on February 16 in favor of the worker who was fired for the same reason.

The affected party, (D. Santos), started working as the manager of The Site Sant Cugat Hotel (currently B&B Sant Cugat) on June 29, 2017, a position for which he received 65,000 euros per year.

On April 13, 2021, Santos took a leave of absence for temporary disability caused by covid-19. A situation that persisted over time by giving a persistent picture and giving another discharge report on May 31. Cause: suffered agoraphobia. It is a disorder that causes fear, anxiety and even a feeling of intense panic when you are in crowded places or outdoor spaces that are perceived as unsafe. So much so that, according to the document, the former employee was admitted to the acute care unit of the Hestia Palau Hospital for “pronounced symptoms of anxiety, which did not improve on an outpatient basis.”

Santos’ termination took place on September 10, 2021. The company informed him of this terminated the employment relationship due to fraud and disloyalty. He was receiving emails to an account associated with the company where a third party was exchanging information with Santos. They discussed the plans of both to attract investors and start a hotel complex in Platja d’Aro (Girona).

The company, with which the Social Court No. 2 of Terrassa initially agreed, presented these e-mails as evidence, as well as the testimony of a hired private detective, who witnessed a meeting between the worker and his partner, to which he referred in e-mails as future commercial director.

This was enough for the judge to find that Santos “performed tasks typical of his usual profession while temporarily incapacitated, which constitutes fraud and a breach of contractual good faith” and that “if he was able to work and perform the same tasks he spent at the company, he must that he was interested in its re-establishment ».

However, the social judges of the TSJ of Catalonia modified this sentence last February. First of all, because the presentation of proven facts does not mention at all the encounters that the private detective allegedly witnessed. Second, because in the telematic conversations, which the judges appreciated, Santos barely actively participated. In addition, they point out that in those talks there was also talk of “the possible launch of a hotel facility of which he would be the commercial director if it were to be realized.” These were not messages that alluded to the institution that was working, nor did they imply that he was performing the activities of a commercial director, but they were exclusively looking for investors for the realization of the project.

The right to seek a better job

So, When does Justice consider that a worker on leave commits fraud? When your activities show that you are able to carry out your normal work or when they impair your recovery (excessive alcohol consumption at low depression, for example). In this case too, the judges find no reason to justify their dismissal. Neither was Santos performing the same tasks that occupied him at the hotel, nor could the e-mail exchange be considered incompatible with the agoraphobia or persistent covid from which he suffered.

They also reject accusations of unfair competition: «Everyone has the right to advance in their professional career and, therefore, to think and explore the possibilities that can be offered to them, even in their own sector of activity.. You can do this even during a situation of temporary incapacity if, as is the case, the diagnosis that motivates him is not incompatible with what this exploration of professional alternatives implies,” they decide.

Because of all this, they declared his dismissal unfair, forcing the company to reinstate the worker under the same conditions and pay him back wages. However, there is a cassation appeal against the decision.

What can and what can’t be done during leave

Spanish legislation not only allows workers in a situation of temporary incapacity to seek a new one employmentalso perform any activity that is not incompatible with the interests of the company or that harms the recovery of the injured party.

Hence, for example, it is possible go out into the street go for a walk or play sports, unless the illness is related to a pathology that prevents it.

It can also travel, but movements and activities cannot jeopardize the recovery of workers. It is not reasonable for the judges that an employee who is disabled, for example due to severe back pain, travels for several hours to another community or publicly shares photos of engaging in, for example, risky sports.

Things get complicated when talking about go to a party. Not only when it comes to physical diseases. With certain pathologies, such as depression, it is useful to maintain social contact, but there are penalties for employees who are fired after being caught red handed consumption of large amounts of alcohol, which is contrary to medical recommendations for this disease.

Can you take the exams or the opposition? According to the dissemination portal El Rincón Jurídico, “it would only be prohibited if it harms the clinical situation of the patient”. If these examinations or objections require the passing of physical tests of similar characteristics to the work that led to the withdrawal, this would be incompatible.