Dismissal during sick leave

That is not correct. Despite the changes introduced by the law of 27 December 2013, it is still possible to terminate the employment contract of an employee on sick leave. Moreover, Article 38 §2 explicitly states that the employer, subject to a notice period, has the right to terminate a contract of indefinite duration during the suspension of performance due to illness. However, if the employer dismisses with notice, the notice period does not run during sick leave. Therefore, unless explicitly prohibited by law, the employer may also dismiss without notice; the only penalty is that they must pay a compensatory severance fee, which is also the case for any other dismissal without an adequate notice period.

Even if the employee has a fixed-term contract, the new Articles 37/9 and 37/10 confirm the employer's right to terminate the contract during sick leave.

The confusion regarding the legislative change is likely due to two factors. On the one hand, the repeal of Article 78: when dismissing without notice after more than six months of illness, the severance payment was reduced by the wages paid since the onset of the incapacity for work. On the other hand, there is the new Article 37/8: if the employee falls ill after the notice of dismissal has been served and takes immediate effect, the period covered by the guaranteed wage is deducted from the notice period. This period serves as the basis for calculating the severance payment.

In practice, these changes do not affect the employer's right to terminate the employment contract during sick leave; they simply regulate whether or not the employer may deduct the guaranteed wage from the severance payment they must pay to the employee.

Previously, under Article 78, the employer could deduct the guaranteed wage from the severance payment if they dismissed an employee after more than six months of illness with immediate effect. Whether the employee was already in their notice period when they fell ill did not matter. For indefinite-term contracts, the law today only provides for this deduction option if the illness began when the employee was already in their notice period.