The idea has spread that any situation of permanent disability of an employee forces the company to adapt their position, relocate them and/or make reasonable adjustments, but this is not always the case. The suspension of the employment contract with reservation of a job when the employee’s situation of disability can be reviewed for improvement that allows their reinstatement still exists.
From May 1, 2025, permanent disability ceased to automatically terminate the employment contract, adding a series of obligations for the company. In this post we explained what the legislative change consisted of. But there is still the case in which permanent disability suspends the employment contract.
Possible scenarios in the event of a declaration of permanent disability
It is convenient to separate the two scenarios that may arise in the event of a permanent disability resolution:
- “Suspensive disability”: when the Social Security resolution expressly provides that the employee’s disability situation may be subject to review for improvement that allows their reinstatement in two years or less, in application of the provisions of article 48.2 of the Workers’ Statute (WS), the contract is suspended with a reserved position. In this case, there is no decision to be taken on termination and, therefore, there is no need to study, in advance, the possible adjustments to the job.
- “Terminating disability”: when the Social Security resolution does not expressly provide for such improvement within a period equal to or less than two years, the obligations provided for in article 49.1.n) of the WS are activated. The employee has ten days from the notification of said resolution to express in writing that they wish to keep their job, and the company has a period of three months to adapt the position, relocate the employee or, where appropriate, terminate the employment contract in a reasoned manner.
The practical key is not the degree of disability, but whether the Social Security resolution expressly establishes that there is a forecast of improvement of the person that can allow them to return to their job within two years.
The mentioned article 49.1.n) of the WS allows the termination of the contract due to permanent incapacity only if there is no room for reasonable adjustments due to excessive workload, there is no compatible vacancy, or the person rejects the one offered. However, that article starts with a specific proviso: “without prejudice to the provisions of article 48.2”.
Judicial conflicts
After the legislative change, dismissal proceedings are being initiated derived, in many cases, from the lack of knowledge that what is actually happening with the contract is a suspension with a reservation of a position.
However, if the correct treatment has been given and the employment contract has been suspended under the terms set out, there has been no termination (express or tacit), so there is no dismissal that can be challenged.
In other cases, doubts arise in the interpretation of the Social Security resolution, as not all of them are drafted in the same way, so it is essential to evaluate the applicable scenario in detail.
What the company should do
To avoid errors, three practical precautions should be taken:
- Read and understand the Social Security resolution well before acting.
- If there is a case of “suspensive disability”, leaving in writing that the contract is suspended for a maximum period of two years from the date of the resolution declaring the permanent disability, is not terminated.
- If there is a case of “terminating incapacity”, follow the regime of article 49.1.n) of the WS, documenting all the steps taken to adjust or, where appropriate, terminate.
Roberto Duato Caballer
