Spain: union rep fired for cycling while on sick leave

Tennis elbow and a 45 km bike ride: the Basque High Court backs the dismissal

The High Court of Justice of the Basque Country (TSJPV) had no doubts: a worker who, while on sick leave with tennis elbow and in the acute phase of the injury, went mountain biking was not honouring his duty of good faith to his employer. The ruling upholds the disciplinary dismissal. But it does not say that any sport during sick leave is automatically grounds for dismissal; each case must be examined individually. The claim of union retaliation did not convince the court: the dismissal was not because he was a workers' representative, but despite being one. In plain terms: the protection enjoyed by a UGT union rep has its limits.

The facts that sink the "it was retaliation" defence

On 18 May 2025, the employee at Refractarios Remosa (where he had worked since 2010) told his supervisor he had been suffering pain in his right elbow for almost two months. It hurt even to put on a shirt or move a chair. The next day, he went on sick leave. The initial prognosis was 120 days; by August it had risen to 365. In the meantime, an employee passed on to management a rumour about the worker's behaviour. The company hired a private investigator, who documented three 45-kilometre mountain routes, including a climb up Serantes.

The doctrine that leaves the appeal without arguments

The court applies the "gradualist doctrine": justifying dismissal requires both gravity and fault, and each case must be analysed separately. It adds a relevant criterion: the doctor does not need to have expressly prohibited the activity. It would be impossible, the court reasons, to list everything that is contraindicated. It is enough to apply "common sense" and assess whether the conduct could jeopardise recovery. With an injury in its acute phase, cycling 45 kilometres over a pass like Serantes led the judges to find a serious breach of the duty of good faith.

From GPS to common sense

The case reopens a classic employment law question: how far can a company monitor someone on sick leave, and where does privacy end? Here the private investigator was enough, but the irony is that in the age of Strava and social media, many workers incriminate themselves. There is no evidence that was the case here, but the warning stands: digital evidence travels in the pocket of the alleged offender. The ruling is not a licence to spy on people on sick leave, but neither is it a blank cheque to turn sick leave into paid holiday.

With all this, it is worth not jumping to conclusions: the next case could go the other way if the activity is a moderate walk and the condition is not worsening. But anyone who thinks sick leave is a rule-free parenthesis should take a look at Serantes. The next legal frontier will be drawing the line between rehabilitation and adventure; woe to anyone who crosses it on a mountain bike.