Can my employer fire me during sick leave in Portugal? (2026)

You are on sick leave and HR calls you. Or you receive an email setting up a meeting. Or, worst case, a dismissal letter by registered post. The first question that hits is always the same. Can they really fire me?

Short answer: they cannot fire you because you are on sick leave. Illness is a legally protected ground. But there are four situations where a dismissal during sick leave can still be lawful, and there are specific rules to challenge it if you suspect the real reason was your health.

The rule: sick leave suspends the contract

When you are on sick leave for more than 30 days, your contract enters suspension by long-term incapacity (Art. 296 CT). Below 30 days, it counts as a justified absence.

Suspension means three practical things:

1. You are not dismissed and you stay on the staff list. The employment relationship is intact.
2. Seniority keeps counting. Every day on sick leave counts towards severance, holidays and any right tied to time of service (Art. 295 n.º 1).
3. You stop receiving pay from the employer and start receiving it from Social Security. From day 4, sick pay replaces salary (DL 28/2004).

Illness itself is a discrimination ground prohibited by Art. 25 of the Labour Code. It is on the same list as sex, age, religion, disability or marital status. Firing someone for being ill is discrimination — and Art. 381 b classifies it as automatic unlawful dismissal.

The four exceptions: when dismissal during sick leave can be lawful

Sick leave is not an absolute shield. In four situations, dismissal during sick leave can be lawful — provided every legal requirement is met and the reason invoked is not the illness itself.

1. Subjective just cause (Art. 351 CT)

The employer opens a disciplinary procedure for a specific fact. It can be something prior to sick leave or discovered during. Typical examples: breach of duty of loyalty, fraud, unjustified absences from disciplinary acts.

How it works: you receive a disciplinary notice at home, with 10 business days to reply in writing (Art. 355 CT). Deadlines do not pause because you are on sick leave. You must reply.

Sick leave does not stop the procedure. But the employer must notify you at home, give you reasonable time and respect every right to be heard. If they invoke "absenteeism due to sick leave" as just cause, that is discrimination and therefore unlawful.

2. Collective dismissal (Art. 359 CT)

Companies with more than two workers can run a collective dismissal for market, structural or technological reasons. Being on sick leave does not exclude you from the list if you meet the objective criteria.

The protection is different: you have the right to the same procedure as everyone else (prior negotiation, notice to DGERT, legal severance of 12 days per year). But there is an extra protection: if the criterion used to select you was your health, discrimination voids the dismissal.

3. Elimination of the post (Art. 367 CT)

The individual version of collective dismissal. The employer decides your post disappears. The criteria are strict: objective reason, impossibility of moving you to a compatible post, legal severance.

Red flag: if the employer hires someone to do your job within six months, the dismissal is presumed unlawful.

4. Unsuitability (Art. 373 CT)

Rarely used. Only works if technological or organisational changes mean the worker cannot keep up even after adequate training. Strict procedural steps required: training given, evaluation, communication.

Important: illness cannot be invoked as unsuitability. If the employer says "after sick leave, you cannot keep up the pace", that is discrimination.

Termination by long-term illness — very narrow case

Art. 343 c) provides for supervening, absolute and definitive impossibility to perform work. In theory, this could apply to irreversible illnesses.

In practice, Portuguese courts read this very narrowly. As long as there is a reasonable expectation of recovery, there is no definitive impossibility. Sick pay can last up to 1095 days (3 years). Below that limit, illness is normally seen as temporary.

If the employer invokes termination during sick leave that still has room for recovery, it is almost certainly unlawful dismissal.

[Common interpretation:] this figure mostly applies to permanent disability declared by Social Security or to illnesses whose irreversibility is documented by a medical board. Never to the third renewal of a sick certificate.

What counts as proof of discrimination

If you take the employer to court and invoke discrimination by health grounds, there is a legal trick on your side: the burden of proof flips (Art. 25 n.º 5).

In practice: you only have to state facts that suggest you were treated worse because of your illness. The employer has to prove there was no discrimination. Reversing the burden is a major advantage.

Typical indicators that count as proof:

• Manager email commenting negatively on the sick leave.
• Repeated HR messages asking for "expected return date".
• Sudden change of treatment after you announced the illness.
• Company statistics: other staff on sick leave also dismissed.
• Immediate replacement by a healthy worker.
• Comments in meetings recorded in minutes or heard by witnesses.

Document everything from day one. Print, screenshot, save outside the company email.

What you get if the dismissal is declared unlawful

When the court declares the dismissal unlawful, a choice opens up for you (Art. 391 CT):

Option A — reinstatement. You return to the same post, same category, no loss of seniority.

Option B — compensation in lieu of reinstatement. You receive between 15 and 45 days of base salary plus seniority bonuses per full year or fraction, with a minimum of three months. The court sets the exact number of days based on the seriousness of the employer conduct, your seniority, and salary level.

In both cases, you also receive interim wages (Art. 390 CT) — every salary you would have earned between dismissal and the ruling, minus what you earned in another job or received as unemployment benefit.

If the dismissal was based on discrimination, you can also claim non-pecuniary damages (Art. 28 CT) — an additional amount for moral damage.

Common tricks employers use

When an employer wants to push out someone on sick leave, they rarely fire directly. They try to push you out. The most common tricks:

1. "Mutual agreement is the only way you get paid." Lie. If they fired you unlawfully, you would receive more. If sick leave is long, you have benefits up to three years. Do not give in to urgency.
2. "If you come back now, we forget all this." Pressure to return early. Do not return without medical clearance — if you get worse, you lose the leave and the medical record.
3. "You will have to pay the sick pay back if you do not come back." False. Sick pay comes from Social Security, not from the employer.
4. "You are letting the team down." Emotional guilt. It is not a legal ground for anything.
5. "We will have to eliminate your post." Could be true, could be a bluff. Ask for everything in writing before any decision.
6. "Your contract ends on the 31st." End of fixed-term. Ask for the formal non-renewal communication in writing (Art. 344). If it arrives outside the 15-day window, the contract auto-renews.

In all these cases: ask for everything in writing, do not reply on the spot, buy time. Sick leave is your ally, not your weakness.

If sick leave was caused by work

Different scenario. If the illness is a direct consequence of harassment, overload or abusive conditions, there is an alternative that may beat waiting to be dismissed.

Resignation for just cause by the worker (Art. 394 CT). You leave, but the employer pays: severance between 15 and 45 days × year (minimum three months), and you have access to unemployment benefit at IEFP.

This route is especially useful when:

• The illness was caused by moral or sexual harassment.
• Wages have been unpaid for over 60 days.
• There is a serious breach of employer duties (safety, dignity, training).

If unsure, read the guide to received disciplinary notice for procedural protection during sick leave.

A 5-step plan if it happened

You received the letter. You sat at the table. Head spinning. Do this, in order:

1. Keep the original letter and envelope. Today. The date of receipt is critical for the 60-day clock.
2. Keep delivering medical certificates while the leave continues. Do not stop just because you were dismissed. Maintain proof that valid sick leave is in place.
3. Document everything. Emails from the last six months about your performance, sick leave, return. Messages. Witnesses who heard comments about your illness.
4. Book an appointment at ACT or CITE. Both are free. CITE specifically handles health-related discrimination. ACT can open an inspection and enforcement procedure.
5. In parallel, talk to a lawyer or a Legal Aid Centre (Social Security, IRN, professional bodies). The 60-day deadline to challenge is tight (Art. 387 n.º 2).

Do not sign mutual agreement without comparing. If the employer offers an amount "to close this nicely", always check whether it is higher than legal severance for unlawful dismissal. It almost never is.

How it all connects

You received a dismissal during sick leave? → Keep the letter → Continue delivering certificates → Document → Check for discrimination (Art. 25) → If yes: reverse burden of proof → Challenge in 60 days → Reinstatement or compensation (15-45 days × year) + interim wages.

You do not need to do everything alone. Pick the piece that helps you now:

• To estimate what you would receive if dismissal was declared unlawful: severance calculator.
• To understand who pays and how much during sick leave: sick pay calculator.
• If the illness was caused by harassment or overload: read about unused holidays payment for severance baseline.
• If you received a disciplinary notice during sick leave: received a disciplinary notice — what to do.
• If you are considering mutual agreement: mutual agreement employee rights.