Dismissal for absenteeism
The Plenary of the Constitutional Court endorses the dismissal for objective reasons of employees who are absent intermittently from work, even for justified reasons, provided they finish being away from his post 20% of the day for two consecutive months.
The resolution of the Constitutional Court has not yet been published but it elucidates the constitutional question raised by the Social Court of Barcelona, who considered that the current regulations could violate the right to life and moral physical integrity (art. 15 CE), the right to work (art. 35.1 CE) and the duty of public authorities to protect public health (art. 43.1 CE) enshrined in the Spanish Constitution. p>
Objective dismissal for lack of attendance at work
Article 52.c) of the Workers’ Statute provides for the termination of the employment contract for objective reasons:
For absences from work, even justified but intermittent, that reach twenty percent of working days in two consecutive months provided that total no-attendance in the preceding twelve months reaches five percent of business days, or twenty-five percent in four discontinuous months within a twelve-month period.
For more illustrative purposes, the target dismissal of a worker who reached one of the following absenteeism percentages:
- 20% of the business days in 2 consecutive months, provided that the total number of absences in the previous 12 months reaches 5% of the business days.
- 25% of such days in 4 discontinuous months, within a period of 12 months.
According to the doctrine, the 12-month period must be computed backwards from the date of dismissal.
In which cases can objective dismissal for absenteeism not be applied?
The recent pronouncement of the Constitutional Court, in line with European doctrine, aims to combat absenteeism when there is evidence that the worker’s absences, even justified, cause material damage both in the national sphere as well as the businessmen who have to suffer its consequences. Which is fully legitimate for the purposes of article 2, paragraph 2 b), paragraph i) of Directive 2000/78/CE of November 27.
However, absences will not be considered computable absences for the purposes of objective dismissal under art. 52 c) the following:
- Absences for exercising the right to strike.
- Absences for carrying out activities of legal representation of workers.
- Absences due to work accident.
- Maternity absences, risk during pregnancy and lactation.
- Absences due to illness caused by pregnancy, childbirth or lactation.
- Paternity leave.
- Absences due to leave or vacations.
- Absences due to illness or non-work accident, when the leave has been agreed by the official services and lasts for more than twenty consecutive days
- Absences motivated by the physical or psychological situation derived from gender violence, accredited by social care services or health services, as appropriate.
- Absences for medical treatment of cancer or serious illness.
Protecting business freedom and defending productivity
The ruling issued by the Constitutional Court supports business freedom and the defense of productivity, understanding that the regulations embodied in art. 52.c) of the Workers’ Statute adequately combines the right to work and health of the employee and, on the other hand, the right to free enterprise within the framework of the market economy guaranteed by article 38 of the Constitution.< /p>
Therefore, if the absences are not due to those listed above and they exceed the parameters of article 52.c) of the ET, the employer will not be obliged to support the constant intermittent sick leave of workers and may proceed to the dismissal of the worker through objective dismissal with the provision of compensation for 20 days per year worked with a maximum of 12 monthly payments< /strong>.
The calculation of absenteeism to justify the objective dismissal
The reality is that few employers resort to dismissal for absenteeism due to the difficulty of calculating the percentage of absenteeism.
Specifically, the absenteeism calculation that justifies the objective dismissal is: 20% of the working days in two consecutive months provided that the total absences in the 12 months above reaches 5% of business days, or 25% in 4 discontinuous months within a twelve-month period.
Since the regulations refer to “business days” Sundays, holidays and vacations must be excluded from the calculation. To calculate the percentage of 20% or 25%, the absences must not be computed each month, but the absences added in 2 or 4 discontinuous months. In addition, it is not necessary to wait 12 months to dismiss the worker if the percentage of 25% is reached in a period of 4 discontinuous months.
For example, the objective dismissal of a full-time worker who is absent from work for 8 working days within a period of 2 consecutive months may be considered appropriate, provided that the total of absences in the previous 12 months reach 5% of the business day. In the same way, it will be justified if this same worker is absent for 20 days in a period of 4 discontinuous months, within a period of 12 months.