The Objective Dismissal due to Absenteeism has been endorsed by the Constitutional Court. In a ruling made public on 29 October 2019, the Constitutional Court (TC, Spanish acronym)) endorsed the dismissal of a worker for intermittent absenteeism even for justified reasons.
It is true that article 52 of the Revised Text of the Workers Statute (ET,Spanish acronym), expresses the possibility of terminating the employment contract for absences from work, even justified but intermittent. But it was not usual practice to resort to the aforementioned precept.
Therefore, there have been no changes in this matter. However, the ruling of the Constitutional Court is an endorsement of the 2012 labour reform, which means that this type of dismissal may be resorted to when the requirements established in the legislation are met.
The Constitutional Court has included in its ruling, among other things, that the limit to the right to work is justified by the freedom of the company and the defence of its productivity.
What is objective dismissal due to absenteeism?
According to the aforementioned article 52 of the ET, the employment contract may be terminated due to absences from work, even if justified but intermittent. When they reach the following thresholds:
- First option: 20% of the working days in two consecutive months, provided that the total number of absences in the previous 12 months reaches 5% of the working days. For the purposes of computing the 12-month period, the day from which you must count backwards is the date of effect of the dismissal.
- Second option: 25% of the working days in four consecutive months within a 12-month period. As established by the Supreme Court (SC) in unification of doctrine (04/02/2019), the calculation of the four months must be made from date to date and never for shorter periods of time.
Considerations to be taken into account
Each counted absence must affect a full day’s work.
Repeated or repeated absences will be computable even if they are for different reasons.
For the calculation of the percentage it is necessary to start from the weekly working day.
Are there absences that do not count?
Certain absences do not count when calculating the percentage of absenteeism. Such as days on strike, accidents at work, maternity, paternity, paid leave or holidays. Neither do they compute the days of illness or non-occupational accident in cases in which the leave lasts more than 20 consecutive days.
Absences due to medical treatment of cancer or serious illness are also excluded.
What is the amount of compensation to be paid to the worker?
The worker must be given 15 days’ notice prior to the date of dismissal and the compensation to be paid amounts to 20 days per year. With a maximum of 12 monthly payments.
If you have any doubt, you can contact the experts of our Labour Consulting Dept.
Arrabe Integra
Labour Consulting Dept.