Temporary incapacity in the new legal climate for companies
Temporary incapacity has become one of the most delicate areas of contemporary employment management. The concept is not new. Companies are also familiar with its basic operation. What has changed profoundly is the legal context surrounding it. Sick leave can no longer be treated solely as a suspension of the employment contract. Companies must also assess it through the lens of discrimination, protection against retaliation, privacy, health, contractual good faith and their own power of control.
The entry into force of Law 15/2022, of 12 July, on equal treatment and non-discrimination, marked a turning point. By expressly protecting illness and health conditions against discriminatory treatment, the law requires companies to act with particular care. This applies to any decision connected, directly or indirectly, with a medical situation. If the company does not justify its decision properly, a dismissal, sanction, internal investigation or control measure adopted during sick leave may appear to be a reaction to the employee’s health condition.
Caution should not become paralysis
That risk has produced an understandable but dangerous effect. Many companies have moved from legal prudence to paralysis. When faced with sick leave, they avoid acting even where there are serious indications of abuse, fraud or conduct incompatible with recovery. They fear that any intervention may appear discriminatory. As a result, they wait, look the other way or accept situations that erode internal trust. That response also sends a difficult message to the rest of the workforce.
However, health protection does not turn temporary incapacity into a space immune from employment obligations. The employee is not providing services, but the employment contract still exists. Its main obligations – to work and to pay for work – remain suspended. Duties of good faith, loyalty, diligence and cooperation with recovery remain in force. In parallel, the company must respect the medical situation, but it also retains legitimate tools to act. This is especially relevant when the employee’s conduct is incompatible with sick leave or reveals a relevant breach of contractual trust.
The relevant legal boundary
The problem, as almost always in Employment Law, lies at the boundary. Not every activity carried out during sick leave justifies a sanction. Not every time an employee leaves home is suspicious. Sporting activity is not always incompatible with temporary incapacity. In some cases, doctors may even recommend physical activity for recovery. The analysis changes when the activity is intense, prolonged or risky. In those cases, it may be difficult to argue that the employee is contributing to recovery. That is where the company may, and sometimes must, react.
The Judgment of the High Court of Justice of Catalonia of 10 April 2025, appeal 6065/2024, offers a particularly clear reading of that boundary. The case does not concern moderate physical activity, supervised active recovery or ambiguous conduct. It concerns an employee on temporary incapacity due to a foot injury. During the sick leave, she participated in a mountain race of more than forty kilometres with significant elevation gain. In addition, the company detected other intense physical activities through a private investigation. The legal debate is not whether an employee may walk or exercise during sick leave. What matters is whether high-intensity sport is compatible with the duty to contribute to one’s own recovery.
Sick leave does not suspend contractual good faith
Temporary incapacity suspends the provision of services, but it does not suspend the employment relationship in its entirety. This distinction is essential. During sick leave, the employee does not have to attend the workplace or perform professional duties. However, the employee remains bound to the company by a legal relationship that requires good faith. That duty operates in several directions. The employee must not simulate illness, prolong sick leave unduly, carry out activities incompatible with the condition, hinder recovery or adopt conduct that compromises business trust.
Case law has accepted that an employee on temporary incapacity may carry out ordinary daily activities. Leisure activities may also be compatible with sick leave when they do not prejudice recovery. Sick leave is not house arrest. An employee on temporary incapacity may leave home, travel, carry out everyday tasks, maintain a certain social life or follow physical activity guidelines. The key is that these activities must remain consistent with the condition that gave rise to the incapacity.
When conduct contradicts recovery
The analysis changes when the activity reveals a contradiction with the cause of the sick leave or creates an obvious risk to recovery. In that case, the company is not sanctioning the illness, the temporary incapacity or a protected health condition. It sanctions different conduct: activities that are incompatible with recovery or potentially harmful to the condition preventing work.
That distinction is decisive from the perspective of Law 15/2022. The company cannot dismiss or sanction an employee merely because they are on sick leave. Nor can it build generic suspicions from a medical situation. However, the company may act when it has sufficient evidence of conduct that contradicts the duties of good faith or compromises a prompt return to work.
This precision must guide any business action. The focus should not be placed on the illness, but on the conduct. The company must prove and contextualise that conduct. It must also connect it to the condition that gave rise to the sick leave. The clearer that connection is, the stronger the company’s position will be.
The case: a bus driver, a foot fracture and a mountain race
The case decided by the High Court of Justice of Catalonia arose from a particularly illustrative situation. The employee worked as a bus driver for a public company in the Barcelona Metropolitan Area, TMB. In April 2021, she began a period of temporary incapacity due to a multiple fracture of the metatarsal in her right foot. The injury was not minor in light of the position held. Professional driving requires physical conditions compatible with continuous activity, attention, mobility and reaction capacity.
During the sick leave, the company became aware of certain activities carried out by the employee. It used a private detective investigation. When used within legal limits, this tool may prove external and observable conduct where there are reasonable suspicions of breach. The investigation documented, among other facts, the employee’s participation in the Ultra Salomon race on 2 October 2021. At that time, she was still on temporary incapacity due to the injury to her right foot.
The race involved an evident physical demand: approximately 42 kilometres and more than 2,000 metres of positive elevation gain. The employee completed it in 6 hours and 58 minutes. Through its medical service, the company assessed that activity as entirely incompatible with satisfactory medical recovery from the injury. It was not a light walk, a prescribed rehabilitation session or moderate physical maintenance. It was a high-demand endurance event, with elevation gain, prolonged duration and intense load on the injured limb.
Further activity observed
The investigation also recorded subsequent activities. On 7 June 2022, the employee left her home in the morning wearing technical sports clothing. She walked at a fast pace to an area with a steep incline and accessed a rural wooded mountain trail. The report stated that she climbed the rocky path agilely and without difficulty. It also described a fast walking or running pace on the incline until she left the investigators behind. In the company’s view, these observations reinforced the existence of physical activity incompatible with temporary incapacity.
The company proceeded with disciplinary dismissal on 10 June 2022. The judicial dispute then focused on two main defence arguments. First, the employee alleged that the offences were time-barred. Second, she argued that the company had not proven that the sporting activities caused an actual worsening of the injury.
Limitation and the moment when the company becomes aware of the facts
The employee’s first argument was based on limitation. Participation in the October 2021 race had been available online since the day it was held. According to the defence, the company could not rely months later on facts that had been publicly accessible much earlier.
The issue is relevant because the company’s disciplinary power is subject to time limits. The company cannot sanction indefinitely conduct of which it is already aware. In employment matters, limitation operates as a guarantee of legal certainty. It requires the organisation to react diligently once it has sufficient knowledge of the facts. However, the debate is not whether the information could be found online. The real question is when the company had real, sufficient and structured knowledge of the alleged conduct.
The High Court of Justice of Catalonia rejected the limitation argument as formulated. Public accessibility of certain data does not, in itself, amount to company knowledge. A company cannot be expected to monitor all sporting results published online on a permanent basis. It does not have to check whether any employee on sick leave has participated in a race. For disciplinary purposes, the relevant knowledge arose when the company received the detective report. That report described the physical activities in an organised way and allowed the company to assess their possible incompatibility with temporary incapacity.
This precision has significant practical importance. In internal or external investigations, the decisive date will not always be the date of the act. Nor will it always be the date on which certain information became publicly accessible. The key date is the moment when the company has sufficient knowledge to build a disciplinary allegation. This difference must not be used to delay the business response artificially. At the same time, abstract availability of information cannot be confused with actual knowledge by the employer.
Continuing conduct and limitation
This point must be considered within the logic of limitation periods for employment sanctions. The law establishes a maximum limitation period of six months from the employee’s conduct. However, the calculation does not begin when the infringing conduct continues to be repeated. In that case, the conduct may constitute a continuing offence. Its main characteristic is that the limitation period does not begin to run while the conduct continues.
For companies, the lesson is therefore twofold. First, they must act quickly once they receive relevant information. Second, they must document precisely when that knowledge arose. The record should include the date of the report, its recipient, its content, the body receiving the information and the start of the disciplinary assessment. Limitation is not defeated with intuition. It is defeated with a clear chronology.
Sport during sick leave: a question of compatibility, not morality
The employee’s second argument focused on the lack of evidence of an objective worsening of the injury. The defence argued that the company had not proven actual harm to recovery. This line of argument often appears in temporary incapacity litigation. If no aggravation, relapse or medically verifiable delay has been proven, the employee may argue that the conduct was not sufficiently serious.
The High Court of Justice of Catalonia rejected that argument. It made a particularly relevant statement. The company does not need to prove an actual worsening of the initial pathology when the conduct during sick leave is potentially harmful to health. It is enough that the conduct is contrary to the duty to contribute to prompt recovery. The employment breach occurs when the employee carries out an activity that is incompatible or reckless in relation to the condition. This may be so even where the company cannot prove additional medical harm.
The distinction is fundamental. If the company always had to prove objective aggravation, many clearly incompatible forms of conduct would be left without response. The employee could assume evident risks during sick leave and avoid disciplinary consequences if no documented worsening materialised. Employment Law does not necessarily wait for damage to occur. It may also assess conduct from the perspective of the risk it creates for recovery.
Risk may be enough
However, this doctrine does not authorise a rigid or automatic interpretation against any physical activity. The key lies in compatibility with the injury and in the intensity of the conduct. Certain conditions may require mobility, prescribed exercises, rehabilitation or moderate activity. In some cases, complete inactivity may even be counterproductive. Each case therefore requires an analysis of the diagnosis, the job position, functional limitations, the activity carried out and the applicable medical recommendation.
What makes the case distinctive is the intensity of the activity. A race of more than forty kilometres, with significant elevation gain and prolonged duration, cannot be equated with low-demand physical activity. This is especially clear when the employee is on sick leave due to a foot injury. Rather, it is the opposite: a high-demand activity, only within the reach of people who are well trained and in full physical condition.
The court does not sanction sport as such. It sanctions the incompatibility between sick leave due to a physical injury and high-intensity sporting activity. That activity compromised, at least potentially, the employee’s recovery.
High intensity and good faith: the point at which the analysis changes
The expression “high-intensity sport” is not a closed legal category. Even so, it is useful to understand the judicial reasoning. There is an evident difference between walking on medical advice and participating in a mountain endurance race. There is also a difference between controlled rehabilitation exercises and running or walking at a fast pace along steep trails during sick leave for a foot injury.
In the case analysed, the sporting activity does not appear as a neutral episode. It took place during a prolonged period of temporary incapacity linked to a specific physical injury. It also involved efforts that directly required the affected part of the body. That connection makes the conduct relevant from an employment perspective. The point is not that the company may control the employee’s private life. The point is that the private activity directly affects the duty not to hinder the recovery that justifies suspension of the contract.
Why private conduct can become employment-relevant
Contractual good faith operates here in a very specific sense. An employee on temporary incapacity has the right to recover, follow medical guidance and avoid discrimination because of their health condition. But they also have a duty not to place that recovery at risk voluntarily. Nor should they engage in conduct incompatible with the cause of the sick leave. The company, in turn, cannot presume fraud simply because the employee has a life outside the home. It may react, however, if it proves an activity that is objectively difficult to reconcile with the pathology.
Intensity is what shifts the analysis. Light activity may be ambiguous. Moderate activity may depend on medical judgment. By contrast, a high-demand activity with prolonged duration and elevation gain offers less room for compatibility when it occurs during sick leave for a foot fracture. That is why the court concluded that the conduct was contrary to good faith. The absence of proven worsening did not neutralise that conclusion.
In business terms, the message is important. The key is not to prove that the activity caused final damage. The company must prove that it was incompatible with recovery or potentially harmful to it. That proof requires evidence, medical context and a carefully constructed dismissal letter.
The use of detectives: valid evidence, but not unlimited
The case also allows us to address a practical issue: the use of private detectives during temporary incapacity. Companies may use this type of evidence where there are reasonable indications of irregular conduct. The investigation must remain limited to observable facts in public or accessible spaces. It must not invade protected areas of privacy. The validity of the evidence will always depend on proportionality, absence of unlawful intrusion and connection with a legitimate employment purpose.
How the evidence should be assessed
The detective does not replace legal judgment. The detective provides facts. They describe movements, activities, schedules and external behaviours. The company must then assess those facts from an employment perspective. Where appropriate, it should rely on medical or technical criteria to explain why the activity is incompatible with the condition. In the case analysed, the company did not merely state that the employee had practised sport. It linked the 42-kilometre race and the mountain activities to the injury to the right foot and to the need to preserve recovery.
This connection is essential. A dismissal letter based only on generic expressions – such as “activity incompatible with sick leave”, “fraud” or “bad faith” – may be vulnerable. The company must describe precisely what the employee did, when and with what intensity. It must explain how the conduct was documented, what pathology caused the incapacity and why the conduct was incompatible with prompt recovery or with the limitations arising from the sick leave.
An overly moralising approach must also be avoided. The reproach should not be built on the idea that the employee “enjoyed themselves” during sick leave or led an active life. That ground is dangerous and legally weak. The reproach must be technical and employment-related. The activity carried out was objectively incompatible with the disabling condition or involved an evident risk to recovery.
The impact of Law 15/2022: caution, not immunity
Law 15/2022 has raised the level of scrutiny applicable to business decisions connected with health. A company must therefore act with particular care when sanctioning or dismissing an employee on temporary incapacity. It must avoid any appearance that the measure responds to the sick leave itself or to the organisational cost of the absence. The reasoning behind the decision must clearly focus on misconduct, not on the health condition.
But that caution does not amount to immunity. Sick leave does not prevent the sanctioning of a breach of good faith. Nor does it require the company to tolerate activities that contradict the very situation of incapacity. Anti-discrimination protection operates against decisions based on illness or health condition, not against disciplinary decisions grounded in objective and proven facts unrelated to the protected ground itself.
Separating health protection from misconduct
The business challenge consists of separating both planes clearly. If the dismissal letter is imprecise, relies on suspicions, fails to connect the activity with the injury, lacks sufficient evidence or depends on invasive surveillance, the risk of nullity or unfairness increases. By contrast, the disciplinary response should not be blocked where the company proves specific conduct that is objectively incompatible with recovery and acts proportionately.
In this regard, the High Court of Justice of Catalonia case offers useful guidance. The company does not sanction the sick leave. Instead, it sanctions extreme sporting activity during sick leave. The reproach is not an active life. It is potentially harmful conduct in relation to the injury that justified the incapacity. The company does not need proof of final worsening. It proves an evident risk of relapse or delay in recovery.
That is the line that must be protected in any business action.
What companies should do when they suspect incompatible activity
When a company has indications that an employee on temporary incapacity is carrying out activities incompatible with the sick leave, the first reaction should not be to rush into dismissal. The company must organise the information. It should identify the known pathology, review the job position, assess functional limitations, analyse the source of the suspicion and determine whether there are sufficient indications for a proportionate verification.
The investigation must be discreet, limited and respectful of fundamental rights. If the company uses a private detective, the instruction must be linked to a legitimate employment purpose. It should focus on external observable activities. The company must avoid indiscriminate, invasive or disproportionate monitoring. Evidence will be stronger when the observation is objective and the connection with the condition is clear.
Once the company receives the information, it should assess it from a medical or preventive perspective where possible. This does not mean invading the diagnosis. It means evaluating whether the activity is compatible with the injury or with the associated limitations. In high-intensity physical activities, that incompatibility may be evident. Even then, a technical explanation will strengthen the decision.
Deadlines and dismissal letters
The company must also take care with limitation periods. From the moment it obtains sufficient knowledge of the facts, the time to impose a sanction begins to run. It is therefore essential to document the date of receipt of the report. The company should also record the person or body receiving it, the start of the disciplinary assessment and the potential prior hearing.
Finally, the dismissal letter must narrate the facts precisely and soberly. It must avoid exaggerations, moral judgments or ambiguous references. What matters is to explain the conduct, the sick leave situation, the incompatibility or risk to recovery and the breach of good faith. In these cases, the quality of the letter may determine the difference between a defensible sanction and a vulnerable decision.
When recovery requires more than not working
Temporary incapacity is not simply a situation in which the employee does not provide services. It is a period oriented towards recovery. That purpose explains the legal protection of sick leave, but also its limits. The employee is not required to remain immobile or isolated. However, they must act consistently with the medical process that justifies the suspension of the contract.
Sporting activity may be compatible with sick leave in certain circumstances. It may even be beneficial. But that compatibility cannot be affirmed in abstract terms. It depends on the pathology, intensity, duration, risk, medical guidance and job position. The company cannot presume that all physical activity is fraudulent. But it does not have to treat an extreme endurance event during sick leave for a foot injury as neutral conduct.
The case analysed shows that certain activities, by their very nature, shift the debate. A mountain race of more than forty kilometres with significant elevation gain does not belong to ordinary mobility or moderate rehabilitation. It is an intense, prolonged and potentially harmful physical demand for a musculoskeletal condition. In that context, the company does not need to wait for proven worsening in order to identify a breach of good faith.
For companies, the message should not be interpreted as an invitation to monitor sick leave indiscriminately. It confirms that temporary incapacity remains specially protected. At the same time, it does not exclude reasonable control or disciplinary response where conduct is incompatible with recovery. The key is to act with evidence, proportionality and legal precision.
A measured conclusion for employers
Managing sick leave requires sensitivity, but also judgment. The protection of health cannot become a business renunciation of contractual good faith. Even during suspension of the contract, good faith remains one of the foundations of the employment relationship.
At Suárez de Vivero, we advise companies, international groups and HR departments on the legal management of temporary incapacity, internal investigations and proportionate use of evidence. We also advise on disciplinary procedures and judicial defence of business decisions connected with sensitive health-related situations.
Frequently asked questions on sick leave, sport and temporary incapacity
Can an employee practise sport while on sick leave?
It depends on the pathology, the intensity of the activity and the medical guidance. Sick leave does not prevent all physical activity, especially where it forms part of recovery or is compatible with the condition. However, high-intensity, prolonged or physically demanding activities may be incompatible if they place recovery at risk or contradict the reason for temporary incapacity.
Can a company dismiss an employee on sick leave for carrying out sporting activity?
Yes, if the company proves that the activity is incompatible with the condition that gave rise to the sick leave or entails a relevant risk to recovery. The dismissal must not be based on the fact that the employee is on sick leave. It must be based on specific, proven conduct contrary to contractual good faith. The company must act cautiously, respect fundamental rights and properly justify the measure.
Is it necessary to prove that the sporting activity worsened the injury?
Not always. The doctrine of the High Court of Justice of Catalonia in the case analysed states that the breach may arise where the employee carries out potentially harmful conduct during temporary incapacity. The company does not always need to prove objective worsening of the initial pathology. What matters is the evident risk to recovery and incompatibility with the sick leave situation.
Can a private detective be used to verify activities during sick leave?
Yes, provided that the investigation is proportionate, serves a legitimate employment purpose and remains limited to observable facts in public or accessible spaces. It must not invade the employee’s privacy. Detective evidence may be valid if it documents relevant external conduct and respects fundamental rights.
Does Law 15/2022 prevent the dismissal of an employee on temporary incapacity?
It does not prevent every dismissal or sanction, but it requires extreme caution. The company cannot adopt discriminatory measures on grounds of illness or health condition. However, it may sanction proven misconduct if the decision is not based on the sick leave itself. The decision must rest on objective facts unrelated to the protected ground.
What should the dismissal letter include in these cases?
The letter must describe the facts precisely. It should identify the situation of temporary incapacity, the known pathology to the extent necessary, the activity carried out, dates, evidence obtained and intensity of the conduct. It must also explain why the activity is incompatible with recovery, why it breaches contractual good faith and why generic wording or moral judgments should be avoided.
Does every intense physical activity during sick leave justify dismissal?
Not necessarily. Each case must be analysed according to the condition, the job position, functional limitations, the specific activity and the available evidence. However, the company may have a solid basis for disciplinary action when high-intensity sports are clearly connected to the injured area or the cause of incapacity.
When does the limitation period for the offence begin to run?
The period begins when the company has sufficient knowledge of the facts. It does not necessarily begin when the facts occurred or when certain information may have been publicly available. In the case analysed, the court placed the relevant knowledge at the receipt of the detective report. That report allowed the company to know and assess the activities carried out.