Originating from Royal Decree-Law 4/2020 of February 18 –which is repealed–, Law 1/2020 of July 15, which repeals the objective dismissal for absences from work established in Article 52.d) of the Workers' Statute, was published in the Official State Gazette (BOE) on July 16, and entered into force on July 17, 2020.
We inform you that, originating from Royal Decree-Law 4/2020 of February 18 –which is repealed–, Law 1/2020 of July 15, which repeals the objective dismissal for absences from work established in Article 52.d) of the Workers' Statute, was published in the Official State Gazette (BOE) on July 16, and entered into force on July 17, 2020.
The regulation itself clarifies that dismissal for absenteeism was a mechanism that legitimized the termination of contracts for employees who were absent from their posts, whether justified or not, exceeding certain percentages. Although all unjustified absences could be counted for the purposes of applying objective dismissal for absenteeism, the justified absences that could be counted were limited, as Article 52.d) of the Workers' Statute expressly listed those inadmissible for applying this type of dismissal.
Over the years, the precept had incorporated new absences that could not be counted for the purposes of applying objective dismissal (suspension due to risk during pregnancy or breastfeeding, absences linked to gender violence, etc.), which meant, in practice, that the article was reduced, in fact, to unjustified absences and absences due to common contingencies of less than 20 days.
The type of dismissal was also affected by other regulatory changes, so that for some time (prior to the 2012 labor reform, in the version prior to the current consolidated text) a certain level of overall absenteeism in the company was required, justified as a criterion of suitability and proportionality. Since the elimination of this requirement in the aforementioned reform, dismissal for absences was only applied upon reaching a certain percentage.
To justify eliminating this type of dismissal, the Law cites rulings by the Constitutional Court (Judgment 118/2019, of October 16) and the Court of
Justice of the European Union (Judgment of January 18, 2018). The latter referred to a case in which the employee's absences were due to their disability, and the dismissal was therefore considered disproportionate and discriminatory on this basis (without any possible justification based on absenteeism). The Law also argues for discrimination based on long-term illness and gender (Judgment of the Court of Justice of the European Union of June 20, 2013).
You can contact this professional office for any questions or clarifications you may have.
Warm regards,
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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