The objective dismissal for Absence from work is repealed through RDL 4/2020. It was established by Article 52.d of the revised text of the Workers’ Statute.
As a result of the 2012 labor reform, this article allowed for the termination of the employment contract due to lack of work attendance. With an indemnity of 20 days of salary per year worked and a maximum of one year’s salary.
The RDL 4/2020, makes an extensive statement of reasons to justify this derogation. On the one hand, the constitutionality of this article is recalled by Constitutional Court Ruling 118/2019. But on the other hand, the doctrine of the Court of Justice of the European Union requires its correction because it did not include mechanisms aimed at opposing and evaluating the specific situation on a case-by-case basis. In other words, it must be brought into line with European Council Directive 2000/78/EC and avoid constituting discrimination on the grounds of disability.
Requirements for Objective Dismissal for Absence from Work
These faults are justified, but as they are intermittent, they must also comply with two additional cases:
- that they reached 20 % of the working days in two consecutive months
- and provided that the total number of absences in the previous twelve months reached 5% of the working days. Or 25% in four discontinuous months within a twelve-month period.
The following did not count as absences from work
- absences due to a legal strike and the exercise of activities of legal representation of workers
- industrial injury
- maternity, risk during pregnancy and lactation, diseases caused by pregnancy, childbirth or lactation, paternity
- leave and holidays
- non-occupational illness or accident when the leave has been agreed by the official health services and lasts for more than 20 consecutive days
- Nor are those motivated by the physical or psychological situation resulting from gender violence, accredited by the social care or health services, as appropriate.
- Nor did they compute absences due to medical treatment for cancer or serious illness.
Consequences
With this derogation, the only business option to carry out a dismissal, based on the absenteeism of the worker, will be via disciplinary dismissal for unjustified absence from work. That in case of being declared unjustified the employee will be entitled to a compensation of 33 days of salary per year of service with a maximum of 24 monthly payments.
If you have any questions, please do not hesitate to contact the experts of our Labour Consulting Dept..
Arrabe Integra
Labour Consulting Dept.
