Activities during temporary incapacity as reason for disciplinary d ismissal: an approach to judicial trends

Abstract

Disciplinary dismissal for carrying out activities incompatible with the worker’s temporary incapacity has emerged as one of the most widely used tools for companies to combat absenteeism. The main purpose of this paper is to review the judicial trends observed regarding when disciplinary dismissal is justified on the grounds of breach of contractual good faith. It notes a certain evolution from rigorous approaches, based on the consideration that the worker should remain in practically complete rest, to the current more or less flexible trends, emphasising the need for a more detailed analysis of each specific case and assessing factors such as the nature of the illness, the worker’s occupation, the characteristics of the activity carried out during the incapacity, and medical recommendations. The review is accompanied, as far as possible, by some critical considerations on a rather ‘murky’ subject, since it is based on seemingly simple theoretical principles, although their application to specific cases is far from easy and, moreover, such principles may not be so obvious when contrasted with certain regulatory data and the various interpretative guidelines.