Friday, 7 November 2025, 16:39
A court in Malaga has ruled that the dismissal of a 53-year-old waiter employed by a hotel in Nerja, on the eastern Costa del Sol was unfair when he was caught weeding his garden while on sick leave due to back pain.
According to the man’s medical report, he had “major spinal problems both at cervical and lumbar level that limit him in many activities, such as standing for long periods of time or picking up heavy things, such as loaded boxes, but he does have to move, walk, do gentle exercises that keep him distracted, such as driving or gardening with care”.
But during the period of sick leave the company hired a private detective, who caught him working in his garden, “collecting branches and leaves which he then transported in a wheelbarrow”. In addition, days later, he was also seen putting a wheelchair into the boot of his car, which he drove to a nursing home where his brother was staying.
These were activities that the company considered incompatible with the reason for his sick leave and ended up dismissing him in January last year for breach of contractual good faith. The worker appealed against this decision.
Initially, the a lower court judgment upheld the claim and classified the dismissal as unfair, ordering the company to choose between reinstatement of the worker, with payment of the corresponding wages from the date of dismissal until notification of the judgment, or payment of compensation in the amount of 67,579.52 euros.
It also dismissed the worker’s claim for additional compensation for damages arising from the violation of his fundamental rights in the conduct of the detective test, as well as for the contravention of Article 7 of ILO Convention 158.
Appeal
However, both the employee and the company’s representatives appealed against that judgment to the High Court of Justice of Andalucía (TSJA). The problem to be resolved was to determine whether the waiter’s conduct during the period when he was on temporary sick leave was sufficiently serious to justify the dismissal.
The court considered that this conduct was not serious enough to justify it, since, “firstly, it is clear that in the present case it is not possible to speak of performing work for oneself or for others during temporary incapacity, so that in order to declare the dismissal to be justified, it would be necessary to prove that the plaintiff’s conduct was totally incompatible with his sick leave, or that it had led to a prolongation of his sick leave or had hindered the worker’s recovery”.
According to the judges, the condition that had led to the dismissal (pain in the lower back) was not incompatible with carrying out “sporadic gardening work” and driving a vehicle, “especially if we take into account that the plaintiff’s conduct was only proven for two specific and determined days and that, due to the very nature of his condition, he was not advised against carrying out light physical exercise or driving a vehicle”. Therefore, there has been no conduct that would allow the dismissal to be classified as fair.
With regard to the private detective evidence, the court considered that it was obtained in a lawful manner, as the images were taken in public spaces, such as outside the worker’s home, without access to his home or to reserved areas. “It is legitimate for a company to use the services of a private detective agency to obtain evidence in relation to an employee who the company suspects of having committed an unlawful employment offence”.
The TSJA dismissed the appeals lodged by both the company and the employee against the judgment handed down by the court in Malaga and upheld the judgment under appeal.