The ruling of the Superior Court of Justice of the Canary Islands, with appeal number 1024/2022, establishes that, given the diagnosis of anxiety of the worker in question, carrying out activities similar to those of her usual job and in which she was on sick leave, has a negative impact on her recovery process. This is because this activity is related to sales to the public and lacks a relaxing, recreational or leisure-oriented nature, factors that could contribute to its improvement.

In this sentence we find a worker who holds an administrative position in an insurance brokerage. This began temporary disability due to anxiety and depression.

During his period of medical leave, he worked in his romantic partner's business, dedicating himself to tasks such as order management, sales processing, receipt and delivery of merchandise, as well as interaction with suppliers.

The insurance brokerage, suspecting that the worker was performing other tasks for another company, hired a detective who effectively confirmed that this was the case.

The company proceeded to dismiss her disciplinaryly and the worker sued the company challenging the dismissal. The lower court ruling dismissed the claim and therefore the claims made by the worker.

The plaintiff filed a petition and the TSJ concluded that for the worker's conduct to justify a dismissal, it must be sufficiently serious and clearly harm her recovery, either by unnecessarily prolonging her temporary disability or by demonstrating fitness for work by requiring physical and mental efforts similar to the tasks of her usual position while she is on sick leave.

The ruling highlights that if the activity carried out during temporary disability harms the company by requiring the payment of temporary disability benefits and contributions while the worker could be working effectively, its lucrativeness or lack thereof is irrelevant.

Although the level of stress could be lower, the ruling maintains that, during a medical leave due to depression, one cannot carry out activities that resemble an employment relationship, given that even serving the public and suppliers entails a stress component. The court notes that the worker does not engage in relaxing activities, such as making hats, which could help her recovery, but instead carries out commercial sales activities, similar to those she previously carried out in her previous job.

Regarding the legitimacy of the company to hire a private detective, this does not depend on the existence of specific suspicions, but on the legitimate interest of the employer in controlling the work or extra-work activity of workers that is incompatible with their recovery during a temporary disability.

In short, resorting to hiring a private detective is legitimate for the employer, even without concrete evidence of misconduct on the part of the employee. This means is legally supported to control the compatibility of the worker's medical leave with any activity that may affect his recovery, as well as to defend himself in the event of possible legal action. Consequently, the decision to use this tool is not subject to a judgment of opportunity or suitability.

Failed: reject the appeal presented by the worker and confirm the lower court ruling.