Objective dismissal for justified absenteeism does not violate the Constitution

The Constitutional Court of Spain declares that dismissal for justified absenteeism does not violate either the right to work or the right to health, while it cannot be adopted in the case of serious or long-term illnesses. It is considered that in the application of this dismissal cause a balance is maintained between the interests of the company – to maintain productivity – and of the worker.

Constitutionality of the Workers’ Statute, article 52

A worker is dismissed for objective reasons. In its letter of dismissal, the company alleges that there has been a lack of attendance,even if justified, at work. In particular, it is indicated that for 2 continuous months, which involve 40 days of work and because of Temporary Disability (TD), the worker had been absent from work for 9 days, exceeding 20% of the absences. In addition, in the previous 12 months the absences of this worker have exceeded 5% of the working days.

Dissatisfied, the worker filed a lawsuit against the dismissal requesting that it be declared null and void for violation of her fundamental rights. Although the social court considers the causes to be accredited, it considers that a regulation that allows a company to terminate an employment relationship due to absenteeism, derived from intermittent illnesses of short duration of the worker, have given rise or not to the issuance of official medical leave reports (Workers’ Statute art. 52.d), may be contrary to the rights to physical integrity (Const. art.15), to work (Const. art.35.1) and health protection (Const. art.43.1). Consequently, the question of unconstitutionality is raised before the Constitutional Court.

The Social Court considers that this cause for dismissal it may condition the behaviour of workers to the detriment of their rights; because in fear of losing his job, the worker may feel obliged to go to work despite being sick, thus assuming a sacrifice that is not at all required, which could even complicate the evolution of his disease.

For to resolve the question, the Constitutional Court recalls that the purpose of the Workers’ Statute it is to protect the productivity of the company and the efficiency at work, for which it exempts the employer from the obligation to maintain an employment relationship that has become burdensome for the company, due to the repeated lack of assistance of the worker to his position. Furthermore, the Constitutional Court adds that the Court of Justice of the European Union has interpreted European legislation as meaning that combating absenteeism is a legitimate aim in order, since it is an employment policy measure.

With regard to the violation of fundamental rights,it states the following:

1. Right to physical integrity(art.15 Const.): This right protects all persons, including workers, against material actions against the human body that pose a serious and certain danger to health, or produced without the consent of the affected party and without the legal duty to bear it. In the allegedly prosecuted,the Constitutional Court considers it difficult to find a connection between this right and this cause of dismissal, which is not the worker’s illness, but absenteeism. In addition, the Workers’ Statute (art. 52d) excludes from its calculation prolonged medical leave and those resulting from serious illnesses, no doubt taking into account that in these cases there may be a serious and certain risk to the health of the workers affected.
2. Right to health protection(ET art.43.1): This right requires the legislator to regulate the conditions and terms under which citizens access health benefits and services. In the case under trial, the Constitutional Court considers that, although this rule may in some cases condition the worker’s actions, it does not protect the health of the workers. It only regulates the possibility of terminating the contract due to absenteeism but in no way affects the access regime and the content of health care for workers.
3. Right towork (ET art.35.1): In its individual aspect, the content of this right is specified in the continuity or stability in employment, that is, not to be dismissed without just cause. However, in the case of prosecution,the rule not only contains the element of causation, but also gives this cause objectivity and certainty. In addition, the Constitutional Court considers that this right is limited by the right to freedom of enterprise and by the mandate to the public authorities to guarantee and protect their exercise and the defence of productivity. It considers that the regulation of the Workers’ Statute responds to the legitimate objective of alleviating the economic burden that absences from work entail for companies.

For all these reasons, the Constitutional Court considers that the contested rule does not infringe any of the fundamental rights and dismisses the question of unconstitutionality raised (although the final judgment contains three individual opinions that disagree with the majority opinion of the Chamber, and consider that the constitutional rights of the worker have been violated).

Dismissal for absenteeism

concepts

• termination of contract for non-attendance at work, still justified;
• it is up to the company to prove the lack of assistance;
• exception: workers in a situation of social exclusion cannot be objectively dismissed for absenteeism.

Requirements for non-attendance

• be necessarily intermittent, their justified nature being irrelevant or not;
• alternatively reach the following thresholds:
  • intermittent absences:exceed 20% of the working days in 2 consecutive months and that the total of the absences of attendance in the last 12 previous months reaches 5% of the working days;
  • intermittent and non-intermittent absences: exceed 25% of working days in 4 discontinuous months within a period of 12 months.

computation

• for full days and not for partial absences from work;
• the calculation of the 12 months, common to the two modalities, is carried out backwards from the date of dismissal and not from the first of the absences taken into consideration;
• the calculation of the months must be carried out from date to date and not by calendar months.
• it is not possible to impute the 25% percentage of absences in a period of time less than 4 months.

Non-computable absenteeism

• legal strike, for the duration of the same;
• exercise of activities of legal representation of workers;
• accident at work;
• maternity;
• risk during pregnancy and lactation;
• paternity;
• diseases caused by pregnancy, childbirth and lactation;
• leave and vacation;
• illnesses or non-work-related accidents, when the leave has been agreed by the official health services and with a duration of more than 20 consecutive days. The sum of the different casualties due to the same pathology that, as a whole, reaches 21 or more consecutive days cannot be excluded from the calculation of absences of assistance;
• derived from the physical and psychological situation resulting from gender-based violence, accredited by social care services or health services, as appropriate;
• medical treatment of cancer or serious illness*.
• lack of assistance resulting from illnesses attributable to the worker’s disability, when it does not fulfil the legitimate purpose of combating absenteeism and goes beyond what is necessary to achieve that purpose.

(*)

Certain pronouncements have considered that the exclusion relates only to lack of care due to the treatment of cancer not those due to the suffering of a serious illness.

indemnity

The compensation would be 20 days per year of service, with periods of time less than 1 year being prorated by months and with a maximum of 12 monthly payments.

Clarifications to the dismissal for absenteeism:

Two recent Supreme Court rulings clarify how absences that may result in objective dismissal for absenteeism are counted. Here’s how to act to make a layoff in these cases appropriate.

Lack of attendance: Unjustified absences from work are grounds for disciplinary dismissal. However, a worker who fails to attend may also be dismissed for objective reasons, with compensation of 20 days, even if such absences are justified.

Requirements to be met

First threshold: To go to this type of dismissal, an employee must have a lack of attendance at work that reach 20% of the working days in two consecutive months. In addition, the total of your absences from attendance in the previous 12 months must reach 5% of the working days.

For this purpose:

• To compute the 12-month period, the day from which you must count back those 12 months, is the date of dismissal.
• In those 12 months of total time, two consecutive months should be taken in which 20% of the absences are reached. In that same time of 12 months, there must also be a total of absences from work of at least 5% of the working days.

Second threshold: If the indicated absences are not reached, you can dismiss if the absences of attendance reach 25% of the working days in four discontinuous months within a period of 12 months. Each of those four months should be computed from date to date and not by calendar months (for example, March 6 to April 5). In addition, it is not valid to compute less than four months.

Objective: Once it has been verified that any of the thresholds of absences of assistance are reached(without counting certain absences, such as those derived from maternity),you must follow the procedures of the objective dismissal. That is, you must communicate the termination in writing, grant 15 days’ notice and make the compensation available to the affected party at that time.

In practice

If one of your employees has incurred the following missed attendance:

Some absences do not count towards dismissal: maternity or paternity absences, leave, leave of absences of more than 20 days in a row, strikes… Etc.

Check: Considering that the dismissal is to be made on April 5 and that in the previous 12 months there are 225 working days, the absences reach 5% of the working days (18 absences exceed 5% of 225, which is 11.25). As absences also reach 20% of the working days of two months in a row – the 13 days of absence in June and July are higher than 8.6, which would be 20% of the 43 working days of both months – dismissal will be possible. Thus, in total, the limits of the first threshold are reached.

Dismissal is possible if, in the 12 months prior to the date of effect, the affected party incurs 20% of absences in two consecutive months and the total of their absences from assistance in the 12 months reaches 5% of the working days.

If you have any questions or need any clarification on this matter, you can contact

any of our advisors so that we can help you resolve them.