Counting Sick Days Is Not Enough: Courts Across Europe Push Back on Dismissals

Three separate rulings in Italy, the Netherlands and Spain have landed in recent months, and together they send an unmistakable message to employers: suspicion is not proof, and a tally of absence days is not a legal basis for ending someone's contract.

Lucca: cancer treatment should not have counted against an employee

Judges in Italy have taken aim at the routine practice of terminating contracts once tariff or statutory time limits expire. The labour court in Lucca ruled that a school employee's dismissal — triggered when she exceeded the maximum sick days during treatment for a serious cancer illness — was both unlawful and discriminatory.

Her reinstatement was ordered with immediate effect. In its reasoning, the court held that days linked to a recognised disability should have been excluded from the so-called "comporto" period. The school, it added, should have notified her about the overrun in good time and examined whether reasonable adjustments could be made.

Verona's tribunal reached a similar conclusion on discrimination in a separate dismissal case. There, the employer had held years of information about the worker's health condition, gathered through occupational medical monitoring and instructions issued by the company doctor. Even so, no proper enquiries were made and no alternative organisational arrangements were considered. Martino Braccioforte of the Fiom-Cgil union in Verona stressed that an employment relationship must not be reduced to a simple count of days off.

The Hague: a marathon runner who told the doctor everything

Private investigators and accusations of malingering are also coming under closer judicial scrutiny. On 22 September 2026, the Gerechtshof Den Haag upheld a decision requiring the company Prijsvrij to pay an ill employee 50,000 euros gross following a dismissal issued in April 2025.

The employer claimed the worker had withheld information about running and driving, thereby misrepresenting his capacity. The court found those allegations insufficiently proven. According to the occupational physician's notes, the employee had disclosed back in January that he ran four times a week and was training for a marathon.

Prijsvrij knew this but never discussed it with the company doctor; nor should the driving issue have been handled without involving the physician. The company also pressured the man inappropriately by threatening to suspend his pay and deploying a private detective — conduct the court classified as seriously reprehensible.

While the pure loss of earnings over the remaining contract term came to roughly 4,550 euros gross, the employee failed in his bid to raise that to 70,000 euros. Prijsvrij must additionally cover 4,421 euros in appeal costs.

Albacete: surveillance footage of shopping and sport proved nothing

In Spain, the Tribunal de Instancia de Albacete declared on 2 September 2026 that the dismissal of a Mercadona employee was void. The worker, employed since 2010 in the Gerente category, had reduced his hours by 99.37 percent to care for his seriously ill daughter.

After a state care benefit was withdrawn by administrative decision in November 2025 and he lodged an objection, he reported sick a few days later. Mercadona then had him observed on four days between 8 January and 18 February 2026, documented activities including sport, shopping and driving, and dismissed him in March.

The court made clear that suspicion does not prove feigned illness. Because the sick note had been issued by a public health institution and Mercadona produced no medical counter-evidence, everyday activities and exercise were not in themselves incompatible with incapacity for work on psychological grounds.

Given the protection against dismissal that applies to employees caring for a seriously ill child, the court ordered mandatory reinstatement plus payment of outstanding wages from 24 March 2026 at 77 euros gross per day. A claim for 30,000 euros in non-material damages for an infringement of fundamental rights was rejected. The judgment is not yet final and an appeal remains possible.

Cologne: when absences genuinely disrupt operations

None of this means high absence levels are untouchable. Where business operations are severely disrupted, dismissals on health grounds can still stand. The Regional Labour Court of Cologne held that a dismissal prompted by illness remains permissible if frequent short-term absences substantially harm the employer's interests.

In the case before it, an employee was absent for around 60 days in each of three consecutive years, causing staffing bottlenecks, cancelled appointments and customer dissatisfaction. Continued pay during sick leave cost the operation roughly 30,000 euros. Since the worker did not cooperate with return-to-work measures, the company's operational interests outweighed the protection owed to him.