Therefore, it is essential that the undertaking be attentive to the concrete content of the assessment body`s decision in order to be able to decide safely whether the employment contract with the worker should be terminated or whether, on the contrary, the suspended contract is maintained for a further two years, subject to the position. When carrying out a medical examination, I always analyze the definition of the medical employment contract of “disability” and the way in which this disability is observed. The physician`s infirmity must be established by a physician who agrees with the physician employed and the employer. Since the doctor works for one or more other doctors, it is important that the chief of the doctor cannot unilaterally declare that the doctor is disabled. Sometimes a medical employment contract circumvents this problem by providing that the doctor is considered disabled for the purposes of the agreement if the doctor`s disability insurance treats him as disabled. This alternative is better than allowing the employer to unilaterally determine a disability, but it is not as good as the agreement that a consensual doctor will make the decision. Finally, I would like to touch briefly on the existence of collective agreements which recognise the right of the worker to be compensated in the event of termination of the contract for this reason. They also recognise the right of the worker to request a change of employment in the undertaking when a complete permanent disability is declared and when there is a vacancy for which he is considered physically and psychologically fit. If, under these conditions, the employer terminates the employment contract provided for in point 49.1(e) of the employee`s statute, instead of extending the suspension of the contract in accordance with Article 48.2, the termination of the contract would be considered an unfair dismissal in the event of the worker`s right. A possible declaration of nullity could even be considered if there are circumstances capable of determining the existence of a discriminatory ground. In this case, because of the worker`s disability. Notwithstanding the above, this possible declaration of nullity in cases of long-term incapacity for work (assimilated by some judgments to the situation of disability) is still very rare in Spain, according to the jurisprudence of the Supreme Court.
It is also important to determine how long the employer continues to compensate the physician in the event of a medical disability. I have convinced some employers, for example, to pay the full salary for a given period (normally no more than three or four months), then a number of months with half a salary, then a number of months with a quarter salary. I was also able to negotiate longer periods with full salary, for example.B. six months full salary, followed by no payment. . . .