Sick leave absenteeism in Spain nearly doubles the European average, according to Eurostat. Companies can investigate activities incompatible with the leave, but they must respect legal limits for the evidence to be valid in a dismissal.
Absences due to medical leave in Spain increased in 2024 well above the European Union average. The proportion of workers absent due to temporary incapacity nearly doubled the community average, according to data from Eurostat. This reality is compounded by reports published at the end of September: Randstad Research confirms that absenteeism continues to rise, and Anged and The Adecco Group Institute estimate an additional cost of 240 million euros in the large retail chains associated with that employer association.
In this context, companies face a dual challenge: managing absences and detecting possible abuses without confusing illness with fraud. The Spanish firm Winterman, specialised in corporate investigation, fraud, business intelligence and risk management, details in an analysis published by lawandtrends.com what companies can investigate in the case of a suspicious leave and what limits they must respect.
The investigation does not consist of determining whether a worker "seems ill", but in documenting specific activities. Detectives can verify whether the person is working for another business or engaging in physical activities apparently incompatible with the limitations that justify the leave. The tasks, their duration, frequency and intensity matter. Observing a one-off gesture is not the same as proving sustained activity.
The detective's report provides facts, but its assessment corresponds to the courts, which must consider the medical and employment situation. Jurisprudence distinguishes between activities that hinder recovery and those that demonstrate a capacity to work incompatible with the claimed incapacity.
Exercising during a leave does not have a single answer. Exercise can be part of recovery, be permitted, or be incompatible with the injury. A photograph of someone cycling or at a gym does not resolve the case on its own: medical recommendations and the effort made must be evaluated. Courts provide examples of this difference. The TSJ of Aragón confirmed in 2022 the dismissal of a worker who, on leave after knee surgery, participated for three days in a paddle tournament. In contrast, the TSJ of Navarra declared in 2018 the dismissal of another worker who had undergone knee surgery and was cycling as unjustified: his doctors had recommended that activity and were aware of his progress.
Going out and enjoying a leisure activity does not automatically rule out a leave due to anxiety. The ability to attend a concert does not automatically demonstrate that a person can handle their workday. Limitations associated with a mental health issue cannot be deduced solely from appearance or a moment of leisure. In April 2024, the TSJ of Cantabria confirmed the unjustified dismissal of a worker who had sung and danced at a concert during a leave for anxiety. It was not proven that the activity harmed her recovery or demonstrated simulation.
The company must define the assignment and prove its legitimate interest. The Private Security Law requires justifying the interest of the person requesting the investigation. The surveillance must adhere to the principles of reasonableness, necessity, suitability, and proportionality. Before starting, it is advisable to specify what facts are intended to be verified and for what purpose. Commissioning a workplace investigation does not authorise the indiscriminate collection of information about the employee's personal or family life.
The home and private spaces are off-limits for surveillance. Just because an activity can be seen from the outside does not mean it is lawful to record it. Privacy remains protected during a leave. The Supreme Court made this clear in its ruling of 25 May 2023: it considered unlawful the photographs obtained by a detective of a worker making efforts in the garden and orchard of his home. The garden was a protected space, and the images could not be used to support the dismissal. Evidence that appears compelling may become unusable due to the manner in which it was obtained.
The report must allow verification of what occurred, not just show a photograph. The regulations require it to identify the object of the assignment, the means employed, the results, and the detectives involved. It should only include information directly related to the investigation. Its usefulness depends on whether it allows understanding and contrasting the facts. Furthermore, detectives must affirm their reports before judicial authorities when required. Properly documenting the context is as important as obtaining the images.
Once the report is received, the company and its labour advisors assess the documented facts, their relation to the leave, and the validity of the evidence. If a decision is made to dismiss, the court will examine whether the investigation respected legal limits. The key is to obtain valid evidence and evaluate each case.
You may also like
