Article 52.d) of the Workers' Statute allows the termination of the employment contract for objective reasons when absences from work occur, even if they are justified, such as medical leave, respecting the legal requirements regarding the calculation of these absences.
The aforementioned legal provision establishes a type of objective dismissal intended for workers who accumulate significant absenteeism, and it is possible to proceed with it when there are absences from work, even if justified but intermittent, that reach twenty percent of working days in two consecutive months, provided that the total absences in the previous twelve months reach five percent of working days, or twenty-five percent in four non-consecutive months within a twelve-month period.
However, for the purposes of calculating what counts as absences, the Law itself establishes the exceptions that should not be taken into account:
- Absences due to a legal strike for the duration of the strike
- The exercise of legal representation activities for workers
- Accident
- Motherhood and fatherhood
- Risk during pregnancy
- Lactation
- Diseases caused by pregnancy, childbirth or breastfeeding
- Licenses and holidays
- Non-work-related illness or accident when the leave has been agreed upon by the official health services and lasts for more than twenty consecutive days
- Illness caused by the physical or psychological situation resulting from gender violence, certified by social services or health services, as appropriate.
- Absences due to medical treatment for cancer or serious illness will also not be counted.
With the legal regulation specified above, it should be emphasized that the legislator's purpose is to establish a measure that curbs truly professional absenteeism of certain workers, since in order to carry out the aforementioned termination of the employment relationship there must be significant absences from work, not only for two or four months, but for the previous 12 months, especially considering all the exceptions provided in order to protect several fundamental rights, such as freedom of association and non-discrimination on the grounds of sex, as well as not penalizing absences due to serious illnesses, therefore sick leave of more than 20 days is not included in the calculation as absences from work.
Doctrine of the Constitutional Court
Recently, the Constitutional Court issued Judgment No. 118/2019, dated October 16, 2019, which resolved doubts regarding this type of dismissal measure by resolving an appeal of unconstitutionality filed by a Social Court in Barcelona. The Court upheld the dismissal discussed here and maintained that there was no violation of fundamental rights due to illness. Although the Judgment was groundbreaking, the worker's legal team has already announced that it will appeal to the Court of Justice of the European Union and the International Labour Organization in order to overturn the decision.
If you require our assistance to obtain further information or have any questions, please contact us via our legal email address, ambit@ambitassessor.com, or at our offices.
Do you have any questions about this topic?
Our team of expert advisors will help you resolve any issues related to our services.
Contact us now
A graduate in Law from the University of Barcelona, she also completed a Master's degree specializing in Labor Law and Social Security at the Barcelona Bar Association. She began her professional career as an intern while studying and later joined the Navarro Law Firm as an employment lawyer, advising companies nationwide on labor law matters and representing them before the Labor Courts, the Labor Inspectorate, in conciliation proceedings, etc. In February 2017, she joined Àmbit Jurídic i Econòmic as a professional partner after extensive experience as an employment lawyer.
Latest posts by Laura Rodríguez Nuñez
(see all)
Related
