By Gloria Ramirez, teacher at Master in HR Management of the EIP International Business School
Repeal of objective dismissal for justified absences
Recent development in the field of termination of the employment relationship, the single article of Law 1/2020, of July 15, published on July 16, 2020, (already published in Royal Decree-Law 4/2020 of February 20), repeals article 52.d) of the Workers' Statute, which provided for the possibility of carrying out an objective dismissal of those workers who were absent from work (even when these were justified). intermittently, within certain limits.
We must remember that, for the purposes of the limits included in the article 52.d) absences that were due to the following situations were not counted as lack of attendance:
- a) Legal strike
- b) Exercise of legal representation activities for workers
- c) Work accident.
- d) Maternity and paternity
- e) Risk during pregnancy and breastfeeding.
- f) Diseases caused by pregnancy, childbirth or breastfeeding
- g) Leaves and vacations
- h) Non-work-related illness or accident when the leave has been agreed by the official health services and lasts more than twenty consecutive days. (intermittency was “punished”)
- i) Those motivated by the physical or psychological situation derived from gender violence, accredited by social care services or public health services.
- j) Medical treatment of cancer or serious illness.
Since, those absences from work due to a Common Illness or Non-Work Accident with a duration of less than 20 calendar days were included in the calculation of the calculation for the purposes of the limits established by the aforementioned article 52.d), could give rise to that several situations of temporary disability due to common illness recognized by the Public Health Service, for short periods within a period of two months, gave rise to the justification for carrying out a dismissal for objective reasons of the worker, having this right to receive a compensation of 20 days of salary per year of service.
Said precept, already repealed, had given rise to numerous conflicts, many of them of important relevance since both the Constitutional Court and the Court of Justice of the European Union had ruled on the matter.
The rule itself states in its explanatory statement that its purpose is to correct the regulations to ensure the proper application in Spain of the doctrine established by the Court of Justice of the European Union, according to which, A study of the specific situation is required to proceed with the application of objective dismissal for justified absences.
Although it is not denied that the company's interest in reducing the absenteeism of its workers is legitimate, the normative provision of the already repealed art. 52.d), could have a very negative effect on people with disabilities or chronic illnesses.
The repeal of this provision especially protects the aforementioned group; however, in the health crisis situation in which we find ourselves, it may mean safeguarding the employment of an even greater number of people.
Therefore, When a worker incurs repeated unjustified absences from attendance, they must resort to article 54.2.a) of the Workers' Statute., where disciplinary dismissal is regulated for serious and culpable contractual breaches by the worker.
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