The repeal of the so-called "dismissal due to absenteeism"

As we already had the opportunity to anticipate in the January Newsletter, one of the expected labour reforms for 2020 was the repeal of the so-called "dismissal due to absenteeism".

Until now, the employer could terminate employment contracts due to employees' absences, through two differentiated procedures:

1. Disciplinary dismissal for repeated and unjustified absences from work, in accordance with Article 54.2.a) of the Workers' Statute. For the calculation of the unjustified absences determining the existence of a very serious infraction, subject to be sanctioned with the dismissal and without the right to compensation, the provisions of the respective collective agreements must be followed;
2. The so-called "dismissal due to absenteeism", regulated in Article 52.d) of the Workers' Statute, which is the modality that has been repealed as of 20 February 2020.

Dismissal due to absenteeism allowed for the termination of the employment contract, with the obligation to give 15 days' notice and pay compensation of 20 days' salary per year of service (up to a maximum of one year's salary), for an employee's absences from work, even if justified, provided that the absences were intermittent and reached specific percentages. In particular, in order to be considered as a valid reason for dismissal, absences had to reach: (i) twenty percent of the working days in two consecutive months provided that the total number of absences in the previous twelve months reaches five percent of the working days, or (ii) twenty-five percent in four discontinuous months within a twelve-month period.

For these purposes, absences due to strikes, legal representation of workers, accidents at work, maternity, risk during pregnancy and breastfeeding, illnesses caused by pregnancy, childbirth or breastfeeding, paternity, leaves and vacations, leaves of more than 20 consecutive days, those derived from gender violence, or those due to medical treatment for cancer or serious illness were not counted as absences.

This legislative reform, which leaves this dismissal without effect, is the legislator's response to the Constitutional Court's Plenary Judgement 118/2019, which dismissed the question of unconstitutionality raised in relation to Article 52.d) of the Workers' Statute, on the grounds of a possible violation of Articles 15, 35.1 and 43.1 of the Constitution.

In its Judgement, the Constitutional Court stated that, with Article 52.d) of the Workers' Statute, the legislator aimed to maintain a balance between the rights of the company and the rights of employees. Specifically, between the legitimate interest of the company to mitigate the onerous nature of absences from work, which is connected to the freedom of enterprise and the defence of productivity (article 38 of the Constitution), and the protection of the health and safety of the employees. Therefore, it can be concluded that the aforementioned article does not infringe the employees' right to the protection of health and safety at work recognized in Articles 40.2 and 43.1 of the Constitution. Likewise, the Constitutional Court ruled out the violation of Article 35.1 of the Constitution. In this regard, it considered that, although the measure limits the right to work in its aspect of the right to employment protection, it does so for a legitimate purpose: to avoid the undue increase of costs that absences from work entail for companies. Such an aim is protected by the Constitution, which provides for freedom of enterprise and the defence of productivity (Article 38 of the Constitution). Moreover, the Constitutional Court considered that this limitation to the right of employment protection is made under certain constraints, which come to weigh up the rights and interests in conflict. In particular, such limitations are: (i) the abovementioned exceptions to the computable absences to justify the dismissal; (ii) the imposition of a termination compensation and; (iii) logically, the employees' right of challenging the measure before the Social Courts, which are responsible for verifying that the business decision complies with the legally established requirements. In particular, the Social Court ensures that the application of the provision, in the specific case, does not go beyond what is necessary to achieve the legitimate purpose of protecting the employer's interests against the employee's lack of attendance at work, when such absences reach the duration established in Article 52.d) of the Workers' Statute.

The explanatory memorandum to Royal Decree Law 4/2020, after referring to the aforementioned Judgement of the Spanish Constitutional Court, justifies the repeal of Article 52.d) in previous judgements ruled by the Court of Justice of the European Union ("CJEU").

Specifically, the Royal Decree memorandum refers to the judgments of the CJEU, of 18 January 2018 (Case Ruiz Conejero), and of 11 September 2019 (Case Nobel Plastiques Ibérica). In these cases, the CJEU established that Article 52.d) of the Workers' Statute might not be in accordance with Council Directive 2000/78/EC, of 27 November 2000, as it may infringe the right to non-discrimination due to disability, if the absences used to justify the dismissal were attributable to the employee's disability.

In addition, it is suggested that the mentioned Article 52.d) could constitute indirect gender discrimination, since it would affect women in a pejorative way. This argument is based on the Judgment of the CJUE of 20 June 2013 (Case Riezniece), which established that the pejorative treatment of persons who exercise their rights to conciliation may constitute indirect discrimination on the grounds of gender if it is found that women are most affected. It is considered that, in the current scenario, where mechanisms to guarantee the right of people on leave due to force majeure are scarce, and where women continue to be more involved in dependant care activities; this dismissal could affect to a greater extent the women collective. For this reason, it is established that an objective dismissal as set out in Article 52.d) of the Workers' Statute may constitute indirect discrimination on the grounds of gender.

In conclusion, the legislator considers that, in view of all these circumstances, there is an urgent need for a legislative reform that puts an end to the contradictory judicial interpretations of Article 52.d) of the Workers' Statute, which must be immediately repealed.