Objective dismissal due to absences versus the principle of non-retroactivity of laws
Much has happened since Royal Decree-Law 3/2012 took effect, so much that people have stopped referring to it as the “new labor law reform”. However, it is not until now that certain hitherto unclear aspects have begun to take shape (thanks to the Supreme Court’s interpretation).
One of these concerns the amendment of article 52.d) of the Workers’ Statute, which brought in the truly significant change of allowing employers to terminate employment contracts on the objective grounds of employee absences regardless of the overall absences of the staff at the workplace. Under the new rules, an employee may be dismissed if he or she has absences, albeit justified but intermittent: (i) of 20% of normal working hours in two consecutive months and his or her absence entails 5% of the normal working hours over the preceding twelve months; or (ii) his or her absence reaches 25% in four non-continuous months over a period of twelve months.
Within weeks of the entry into force of the reform, a considerable number of employers relied on the new wording of the article to terminate the employment contracts of employees with the absence levels set out in article 52 of the Workers’ Statute. In doing so, they had to take into account the absences prior to the reform given that an annual computation was necessary.
The fact of computing absences prior to the reform in order to carry out objective dismissals has triggered fierce debate in the labor courts as a result of numerous appeals against the dismissals. Some courts have held that computing these absences would run counter to the principle of non-retroactivity of laws, while others have considered that, if there is no transitional provision, the article should be applied directly on its own terms.
Against this backdrop, the Supreme Court has issued several judgments in response to requests for a definitive ruling on a point of law, in which it has opted for the first of the above-mentioned approaches. In other words, it considers that absences prior the entry into force of Royal Decree-Law 3/2012 cannot be taken into account when analyzing compliance with the requirements for objective dismissals based on employee absences.
All in all, this interpretation has meant that, in practice, employees could not resort to this type of objective termination of employment contracts until the new law had been in effect for one year (or, in the best case scenario, four non-continuous months) since, given that the annual computation requirement had to be met but at the same time absences prior to the reform could not be taken into account, it was not possible to meet the requirement of 5% of the normal working hours over the preceding twelve months.
Garrigues Employment and Labor Law Department