The complex regulations governing dismissals on grounds of the employee’s absenteeism
Failures to attend work, even where duly justified, may in certain circumstances lead to a worker being dismissed. This is what has been dubbed an “objective dismissal on grounds of absenteeism” (article 52.d of the Workers’ Statute).
Following the modifications brought about by the 2012 labor reform, dismissals on grounds of absenteeism require, first of all, that the failure to attend work (as noted above, even where justified by the worker) be intermittent and, secondly, that the employee’s absence account for a certain percentage within the reference period established by the legislation, namely: (i) either 20% of the working days for 2 consecutive months, provided the total absences during the preceding 12 months account for 5% of working days; or (ii) 25 % for 4 non-consecutive months during a 12-month period.
While dismissal on grounds of absenteeism was already provided for in the Workers’ Statute, the 2012 labor reform (Article 18.5 of Law 3/2012, of July 6, 2012, on urgent measures to reform the labor market) brought in its wake a major new development, by doing away with the need to link its application to total absenteeism among the staff (an index that had to exceed 2.5% during the same periods).
Despite appearances to the contrary, this concept is applied on a highly restrictive basis, since the law sets out an extensive list of failures to attend work that are not taken into account when calculating the employee’s absenteeism levels (please consult the following link to the MEYSS website for further details).
The aim of this dismissal it to penalize short but reiterated absences, this type of absenteeism being precisely the most difficult type to check on from the employer’s standpoint and the one that proves most detrimental to organizational productivity.
Nevertheless, the numerous doubts arising from the regulations governing dismissals on grounds of absenteeism (method of calculating the reference time periods, limits on the concept of “serious illness” or “illness caused by pregnancy”, etc.), together with the restrictive stance taken by the courts (by way of example, the Supreme Court judgment of October 16, 2013, which upheld the nullity of the dismissal under the judgment on the understanding that the new regulations under Article 52.d of the Workers’ Statute cannot be applied to absences prior to the entry into force of the new legal framework) means that this mechanism has not been widely used by employers.
Garrigues Labor Department