Dismissal for absenteeism: the courts define the concept of “serious illness”
Law 3/2012, of July 6, 2012, on urgent measures to reform the job market (referred to as the 2012 “labor reform”) made significant amendments to article 52.d) of the Workers’ Statute, i.e., the provision regulating objective dismissal for absenteeism.
One of these amendments was to list absences “due to a medical treatment for cancer or serious illness” among those that cannot be counted as an absence for the purposes of objective dismissal.
Although this exclusion could be regarded as necessary, it has given rise to many legal questions. For example, how can an employer know what illness is suffered by an employee if it is not informed of the illness by the employee himself? What is understood by serious illness?
Judgments handed down in recent months have begun to clarify some of the questions arising from this matter, but they also disclose the disparity in the positions taken by the high courts when interpreting the provision.
Thus, for example, while some courts evaluate whether or not the illness claimed by the employee can be considered a serious illness (the Andalucía High Court in Málaga, in judgment 1641/2014, of November 13, 2014, ruled that a migraine does not merit consideration as such; the same position was taken by the Castilla y León High Court in Valladolid, in judgment 1095/2014, of July 16, 2014, in connection with bronchitis and abdominal pain), other courts rule that it is not incumbent upon them to clarify whether or not a sick leave can be deemed due to serious illness, rather this can be done only by the doctors who treated the employee, who must be asked to issue the appropriate reports (Cataluña High Court judgment 1267/2014 , of February 19, 2014).
It follows from a reading of the aforesaid judgments and of others handed down in relation to this type of dismissal that, in general, most courts would exclude absences due to the suffering of a serious illness. Nonetheless, the Madrid High Court (judgment 494/2015, of May 26, 2015) and the Castilla La Mancha High Court (judgment 1130/2015, of October 23, 2015) have concluded that, although the provision excludes absences “due to a medical treatment of cancer or serious illness”, it is not excluding absences due to the suffering of a serious illness, but rather only those due to the treatment of that illness.
The problem therefore remains, notwithstanding the efforts of the courts to define the concept, given that an employer will not know whether the sick leave taken by an employee is due to the treatment necessary to combat a serious illness until after the dismissal or even the trial.
Garrigues Labor and Employment Law Department