The Constitutional Court ratifies the legality of dismissal for absenteeism, even if justified

Written on 28 Nov 2019

In its judgement dated 17 October, the Constitutional Court rejected the question of unconstitutionality raised by the Social Court number 26 of Barcelona. With this pronouncement, the Constitutional Court endorses the objective dismissal of an employee, for repeated absenteeism, under the provisions of article 52.d) of the Workers Statute.

Under article 52.d) -Workers Statute (“ET”), the contract of an employee may be terminated for justified but intermittent absences from work. Prior to the labour reform of 2012, article 52.d) ET required, for the objective termination of the employment contract, that the rate of total absenteeism of the workplace personnel exceed 2.5%. Thereby, the legislator considered proven the existence of a real damage for the company. However, this requirement is not included in the current wording of the article:

“Contracts may be extinguished: d) Owing to absences from work, even where these are justified but intermittent, when they amount to 20 percent of the working days of two consecutive months, as long as the total number of absences in the previous twelve months is 5 per cent of the working days, or 25 percent for four discontinuous months within a twelve-month period.”

In addition, article 52.d) ET clarifies that certain absences (established in the Law and in the applicable collective agreement) are not recorded as absences: among others, those due to illnesses caused by pregnancy, the exercise of the right to legal strike, those derived from an accident at work or those corresponding to vacation time.

The case judged by the Constitutional Court (“TC”) has its origin in the termination of the contract of an employee whose percentage of justified absences in the last 40 working days reached 22.5%, and in the previous 12 months 7.84%, so the company proceeded to dismiss her under article 52.d) ET.

The question of unconstitutionality raised by the Social Court challenges whether the application of article 52.d) ET violates the constitutional rights contained in article 15 of the Spanish Constitution (“CE“) (right to physical integrity), article 35.1 CE (right to work) and article 43.1 CE (right to health protection).

In particular, the Social Court states that the application of article 52.d) ET violates the right to physical integrity (art.15 CE) and the right to health protection (art. 43.1 CE) because it imposes an obligation on the employee to go to work while unwell. However, the Constitutional Court considers that the employer’s authority to dismiss the employee for lack of attendance, even if the absences are justified, “does not entail an action likely to affect the health or recovery of the worker concerned, since it cannot be adopted in the case of serious or long-term illnesses, nor in the other cases excluded by the legislator, which makes it possible to rule out that Article 52 d) ET can be considered contrary to Article 15 CE“.

Finally, the Constitutional Court dismisses Article 52.D ET as violating the right to work (art. 35.1 CE), because “although it is true that the legislator has adopted a measure that limits the right to work, in its aspect of the right to stability in employment, it has done so with a legitimate aim – to avoid the undue increase in the costs incurred by companies in absences from work, which is constitutionally based on the freedom of the company and the defence of productivity (article 38 CE)“. In this sense, the TC considers that when the employer applies art.52.d) ET, his action does not exceed what is necessary to achieve the legitimate purpose of protecting his own interests against the employee’s lack of attendance.

In conclusion, the Constitutional Court determines that there is no violation of any constitutional precept, but only a limitation of the constitutional right to work, duly justified by the right to freedom of enterprise guaranteed by article 38 CE.

This judgment has generated numerous reactions. The main trade unions in the country consider that this ruling is unfair to the employee and fear that it will popularise the use of this type of dismissal, and have announced that they will appeal the ruling of the TC before the Court of Justice of the European Union. However, the European Court has already confirmed the enforceability of article 52.d) ET in the past, with its ruling in the Ruiz Conejero case (case C-270/2016), in which it is concluded that, provided that “such legislation (article 52.d) ET) has the legitimate purpose of combating absenteeism and does not go beyond what is necessary to achieve that purpose” it shall be valid.