The legal relationship that unites the company with the worker is established by a series of rules (legal and regulatory provisions, collective agreements), as well as by the will of the parties - manifested in the employment contract -, the uses and traditions.
Taking into account that, regarding salary advances, it is in article 29 of the Workers' Statute (hereinafter, ET), where the right of workers is recognized - with the consequent obligation for the company - to receive advances on account of the work already done, from the Labor area of tomarial We question whether this obligation for the company extends to workers' requests for advances on account of temporary disability benefits.
In this regard, it must be taken into account that, when a worker is unable to work (either due to common contingencies - illness, or non-work accident - or due to professional contingencies - professional illness, or work accident -, a report must be issued. of medical leave, which will give rise to disability benefits, and which will result in the temporary suspension of the provision of services by the worker.
Therefore, during the situation of temporary disability, there is no provision of services by the worker, and consequently we would not be faced with the situation provided for in article 29 of the ET.
However, given that legislation - specifically the ET - is not the only source of labor law, the obligation, or not, to grant an advance to a worker on account of the temporary disability benefit, will depend on several factors. factors:
- Collective agreements: Company collective agreements may establish specific provisions regarding salary advances during medical leave.
- The existence of an individual or collective agreement: Individual or collective agreements between the company and the worker and/or workers may establish the conditions under which advance payments of temporary disability benefits can be granted. If there is a prior written agreement that allows advance payments during medical leave, the company will be obliged to comply with said agreement.
- The company's internal policy, understood as a custom or custom: The internal policies of companies can also determine the obligation to grant salary advances during medical leave.
In such a way that, if for the customs and habits followed in the company:
- Advances on account of temporary disability benefits have never been granted; the company would not be obliged to grant them.
- Having been granted, said concession has been made in response to clear and clearly determinable criteria (for example: in response to the long duration of the temporary disability), in which case it would only be required when we find ourselves in those specific cases.
- They are granted indistinctly, in which case the company would be obliged to grant advances on account of the temporary disability benefit.
Without prejudice to the foregoing, it must be taken into account that, in accordance with Spanish legislation, during medical leave the worker may have the right to receive a temporary disability benefit, the amount of which, in the case of a common illness or non-work accident, is, unless otherwise provided for in the agreement, lower than the usual salary.
Therefore, it is not surprising that workers on medical leave, given the amount received as benefits, cannot cover their ordinary expenses or financial commitments that they had assumed prior to the situation of temporary disability and that, consequently , request advance payments from the company on account of their benefit, since the economic loss of the worker during the situation of temporary disability, if it is prolonged, can be considerable.
Thus, as a conclusion and in general, while the worker is on medical leave, the company is not obliged to pay advances on account of the temporary disability benefit. However, if something else is established by collective agreement, individual or collective pact, or by the custom followed in the company, the company could be obliged to pay said advances, which the worker must return in the future, either through discounts. on subsequent payrolls or through another agreement established with the company.
Therefore, in any situation that arises in the company in reference to the requirement by workers for advance payments on account of the temporary disability benefit, it is very important to have expert advice on labor law, in order to to assess the conventional standard applicable to the company, as well as the existing antecedents.
Eduardo Belenguer Navarro
Labor Area of TOMARIAL