TERMINATION OF THE EMPLOYMENT CONTRACT DURING THE PROBATIONARY PERIOD WHILE ON TEMPORARY INCAPACITY LEAVE: HOW TO AVOID NULLITY

The termination of an employment contract during the probationary period is a legal prerogative granted to both parties in the employment relationship (Article 14 of the Workers’ Statute). However, when such termination coincides with a period of medical leave or temporary incapacity (IT) for the worker, questions may arise as to whether this decision amounts to discrimination or a violation of fundamental rights, especially in light of Law 15/2022 and recent case law.

This article analyzes the current state of affairs and offers key recommendations to avoid the nullity of these contract terminations.

LEGAL FRAMEWORK

Article 14 of the Workers’ Statute allows either party to withdraw from the contract during the probationary period without the need to provide a cause, provided that:

· The probationary period has been expressly agreed upon in writing.

· There is no fraud or violation of fundamental rights.

With the entry into force of Law 15/2022 on equal treatment and non-discrimination, the protection of workers against dismissals linked to their health status or illness is reinforced (Articles 2.1 and 4.1).

RECENT CASE LAW: WITHDRAWAL OR DISCRIMINATORY DISMISSAL?

Valid termination: objective evidence

· STSJ Madrid, 21/11/2024: declared lawful the termination during the probationary period as there was documented evidence of negative performance evaluation prior to the IT.

· STSJ Catalonia, 06/03/2025: held that the company rebutted the presumption of discrimination by proving that the decision was made two days before the medical leave and based on objective reasons.

Void termination: unrefuted presumption

· STSJ Andalusia, 10/12/2024: declared the termination null as the company failed to justify when it became aware of the IT or the reasons for termination.

· STSJ Balearic Islands, 23/01/2025: the company did not justify the cause of termination, and the close temporal proximity created a presumption of discrimination.

HOW TO AVOID NULLITY: PRACTICAL RECOMMENDATIONS FOR COMPANIES

· Document the grounds for termination: performance evaluations, internal reports, meeting records.

· Maintain emails and internal communications showing that the decision was made prior to or independently of the medical leave.

· Avoid reactive decisions taken immediately after the medical leave is notified.

· Include a clause in the probationary period agreement providing for its suspension in the event of IT.

· Assess the presence of a prima facie case before termination and reinforce objective documentation.

CONCLUSION

Terminating a contract during the probationary period while the worker is on medical leave is not per se null and void, but it will be if it is proven that the true reason for termination was the illness. Case law has made it clear that it is not enough to rely on the termination prerogative of Article 14 of the Workers’ Statute: the company must break the presumption of discrimination with objective, credible, and health-status-independent justifications.

Applying these recommendations not only reduces the risk of nullity but also protects the company’s image and legal certainty.

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