Goodbye to Objective Dismissal Due to Absenteeism at Work

10 March 2020 - Monika Bertram

On 19 February, Royal Decree-Law 4/2020 of 18 February entered into force. This meant that the government, based on Article 86.1 of the Constitution, decided to take the urgent path to repealing Article 52.d of the Workers’ Statute, which enabled business owners to carry out dismissals for objective reasons, for missed workdays, even if justified, which reached a certain percentage during a period of reference. In any case, there were situations (maternity, risk during pregnancy and nursing, vacation, leaves of more than 20 days, etc.) that in no case could be counted as missed workdays and, thus, were excluded from the scope of the regulation.

It must be emphasised that the aforementioned regulation, in force since Law 8/1980, of 10 March, on the Workers’ Statute, was practically unknown. It was not until the mediatic whirlwind that surrounded the Ruling of the Constitutional Court 118/2019, of 16 October, which declared the constitutionality of such precept, that many people became aware of its terms and scope.

Nevertheless, the decision of the Constitutional Court allowed the both parties of the coalition government, faced with such mediatic commotion, to agree to promote its repeal. This was then included in the government programme signed between them in December of 2019.

What elements justify the urgent repeal of the regulation?

From reading the grounds for the regulation, and pursuant to case law of the Court of Justice of the European Union (CJEU) in its rulings of 18 January 2018 and 20 June 2013, respectively, the urgency is mainly justified by the need to eliminate a regulation which, in the eyes of the government, and against what was expressed by the Constitutional Court, was an instrument susceptible to provoking discrimination of two kinds:

–    Discrimination due to disability: pursuant to a ruling of 18 January 2018, the CJEU reached the conclusion that the Spanish precept did not adapt to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, especially Articles 2.2.ii and 5, as it threatened the right to non-discrimination due to disability, and more so if we consider that the regulation itself did not establish any mechanism for supervising proportionality and adaptation.

In any case, and on a national level, our Supreme Court (Supreme Court Ruling of 15 March 2018) already clarified when a situation of temporary incapacity may be included in a case of discrimination which is linked to the nullity of the dismissal. Accordingly, the Supreme Court, taking into consideration the aforementioned European regulation, concluded that illness does not imply per se the disability of the working person, where each case of temporary incapacity must be evaluated on an individual basis.

–    Gender discrimination: through the ruling of 20 June 2013, the TJUE reached the conclusion that the negative treatment for people who exercise their right to conciliation, principally women, could constitute indirect gender discrimination. According to the Royal Decree-Law itself, the Spanish Statistical Office (INE) has confirmed that it is still women who most often take on the care of dependent persons, and as such, the maintenance of Article 52.d of the Workers’ Statute could constitute indirect gender discrimination already warned against in the European ruling.

In light of the above, by repealing Article 52.d of the Workers’ Statute, the intention is:

  1. Guarantee compliance with the European regulation, especially, Council Directive 2000/78/EC, of 27 November 2000.
  2. Avoid that Spanish courts dictate rulings contradictory to one another and,
  3. Avoid that any type of discrimination occurs, above all, vis-à-vis especially vulnerable groups.

In light of the above, we say goodbye to a regulation that was in force for almost 40 years and that strictly speaking, has scarcely been put into practice by business owners. An example of this is that until the ruling of the Constitutional court in 2019, few knew of the contents and scope of the regulation. Additionally, we must not forget that our labour regulations already protected dismissals that could have been linked to any type of discrimination, through the declaration of nullity thereof, with the consequences inherent to said declaration.

For further information: Monika Bertram