Contesting an early discharge (alta médica) while you are still unwell

Key rules

• Deadline: You have 4 working days from the discharge to file your disagreement.
• Sick pay: Sick pay ends on the date of the discharge, even while you dispute it.
• Court: You have 30 working days to go to court after the INSS decision, or after its time to decide runs out.
• Dismissal: Sick leave does not block a dismissal, and the dismissal claim must be filed within 20 working days.

The short answer

If the INSS or a mutua has discharged you and you still feel unwell, you can dispute it, but you must act fast. You have 4 working days from the discharge to file your disagreement with the Inspección Médica of your regional health service. Keep proof of the date you filed.

How the procedure works

1. You file a written disagreement (reclamación) with the Inspección Médica.
2. The Inspección Médica issues a proposal and sends it to the INSS. It has 7 days to do this.
3. The INSS then decides within a further 15 days. It can confirm the discharge or reverse it.
4. If the decision goes against you, you go to the social court (Juzgado de lo Social), after first making a prior administrative claim.

For the court stage, you have 30 working days from the day the INSS decision is notified. If the INSS says nothing, the 30 working days run from the end of the period it had to decide.

What happens to your pay meanwhile

The discharge takes effect on its date, so your sick pay stops then. Filing the disagreement does not by itself keep it going. Plan your money for that gap.

• If the INSS reverses the discharge, your benefits continue without a gap.
• If the INSS confirms it, you return to work, or request unemployment benefit if you need it.
• If you later win in court, the benefit is paid retroactively.

Whether any payment can continue while your claim is pending can vary, and the INSS decides. Ask the INSS when you file.

What happens to your job

Being on sick leave does not stop your employer from dismissing you. A dismissal is not automatically void because you are ill. But if the real reason is your illness or health condition, it can be declared null (nulo). You would then be reinstated with back pay and possibly compensation. Otherwise an unjustified dismissal is usually declared improcedente, and your employer chooses between paying compensation or taking you back.

You can keep contesting the discharge while a dismissal is dealt with. The two are separate. A dismissal claim must be filed within 20 working days, so do not wait for the INSS answer before acting on it.

The decision, timeline, checklist and questions below walk you through each step.

Choosing between options

The INSS has confirmed your discharge and you still feel unwell. What do you do next?

• Go back to work: You can work again, or you want to keep your job and pay going while you pursue the matter.

• Request unemployment benefit: You cannot return to work and need income, for example because your employment has ended.

• Take the case to the social court: You still disagree with the decision. If you win, the sick pay is paid retroactively.

Going to court is possible alongside either of the first two options, within 30 working days of the INSS decision. Winning means the benefit is paid retroactively.

Timeline and deadlines

• File your disagreement with the Inspección Médica of your regional health service: within 4 working days of the discharge

• The Inspección Médica issues its proposal and sends it to the INSS: within 7 days

• Bring your claim to the social court if the decision is unfavourable: within 30 working days of the INSS decision, or of the end of its period if it stays silent

Checklist

• Plan for your sick pay stopping on the date of the discharge, since it takes effect from that date.

• Wait for the INSS decision, which can reverse the discharge so your benefits continue without a gap.

• Go back to work, or request unemployment benefit if you need it, if the INSS confirms the discharge.

• Make the prior administrative claim before you go to the social court.

What to watch out for

• Being on sick leave does not stop a dismissal: Being on baja does not by itself make a dismissal void, and contesting your discharge does not stop your employer from dismissing you. A dismissal motivated by your illness can be declared null (nulo), with reinstatement, back pay and possible compensation. Otherwise an unjustified dismissal is usually declared improcedente, with compensation or readmission at the employer's choice. If you are dismissed, keep your discharge dispute going and get advice on the dismissal straight away.

• The dismissal claim deadline is short: You lose the chance to challenge a dismissal if you wait too long.

Frequently asked questions

Will I get my sick pay back if I win in court after the INSS confirms my discharge?

Yes, if you later win in court, the benefit is paid retroactively for the period it was cut. Until then, the discharge stands and your sick pay stops from its date.

Can my employer dismiss me while I am contesting an alta?

Yes, your employer can dismiss you, because contesting an alta does not stop the normal dismissal rules. If the dismissal was motivated by your illness, a court can declare it null (nulo) and order you back with back pay, so file your claim within 20 working days.

What happens if the INSS does not answer my claim?

If the INSS does not resolve within its period, you can treat the silence as a refusal and go to court. The 30 working days to file start when that period ends.

What if the INSS confirms the discharge and I am still unwell?

You must go back to work, or request unemployment benefit if you need it. You can still take the case to the social court (Juzgado de lo Social) after the required prior administrative claim.