20 Jan The Spanish Constitutional Court endorses objective dismissal on the grounds of absences – how many times can I miss work?
The Constitutional Court has been asked to rule on the constitutionality of the objective dismissal for absence from work under current regulations. The plaintiff in a court case argued that the dismissal violated fundamental rights and therefore sought to have it annulled.
A 16 October 2019 ruling of the Constitutional Court has supported the termination of a work contract for objective reasons if there is a certain number of justified absences within a given period of time, as laid out in current regulations.
This type of contractual termination is covered by Article 52(d) of the Workers’ Statute, which specifically states that the employment contract may be terminated:
“(…) d) For absences from work, even justified but intermittent, reaching 20% of workdays in two consecutive months, provided that the total number of absences in the previous twelve months reaches 5% of workdays, or 25% in four discontinuous months within a twelve-month period. (…)”
To summarize more simply, there are two prerequisites for proceeding with an objective dismissal:
1.- For there to be justified absences equal to or greater than 20% of workdays within two consecutive months. In this context it must be clarified that unjustified absences may lead to other types of dismissal.
2.- For absences in the previous twelve months to be equal to or more than 5% of workdays or, alternatively, to be equal to or more than 25% in a four-month period within a twelve-month period.
The question of the constitutionality of this provision was raised by a Social Court in Barcelona in the context of legal proceedings concerning the dismissal of a female worker under this article, who had requested the annulment of this dismissal for having violated human rights since the contested article contained an “evident threat of coercion to the ill worker by dissuading her from being temporarily incapacitated for fear of being dismissed.”
However, in its ruling, the Constitutional Court upheld the constitutionality of the provision and recalled that the cause for dismissal was not the mere fact of being ill, but the intermittent reiteration of the number of absences from work, justified or not, that have occurred in a given period of time.
The Constitutional Court understands that this legal provision may limit the right to work with regard to employment stability, but dismissal in these cases has “a legitimate purpose – to avoid the undue increase of costs that absences from work impose on companies – which is based on the freedom of enterprise and the defense of productivity.” The Court therefore determines that such a limit to the right to work is justified by the freedom of enterprise and the defense of productivity.
Finally, the ruling also points out that dismissing workers for exceeding a number of intermittent absences from work in a given period of time “does not involve action likely to affect the health or recovery of the worker concerned and cannot be taken in the case of serious or long-term illnesses.”
