The dismissal for absences, justified or not, is contemplated in Spain in article 52.d) of the Workers’ Statute.
The objective dismissal for justified absences
In Spain, the termination of a contract may be carried out for objective reasons: for lack of work attendance, even if justified but intermittent when it reaches twenty percent of working days in two consecutive months, provided that the total number of absences in the previous twelve months reaches five percent of working days, or reaches twenty-five percent in four discontinuous months within a twelve-month period.
It should be remembered that this rule is intended for cases of repeated or frequent absences, and not for a prolonged absence such as a result of a sick leave.
The purpose of this normative precaution is to combat so-called absenteeism.
However, the following reasons do not count for a dismissal for absences:
- Legal strike
- Practice of activities of legal representation of workers
- Occupational accident
- Maternity leave, risk during pregnancy and lactation or diseases caused by pregnancy or labour
- Paternity leave
- Permissions and vacations
- Illness or non-occupational accident when the leave has been agreed to by the public health services and lasts more than 20 days
- Those motivated by the physical or psychological situation derived from gender violence, accredited to by the social care services or health services, as appropriate
- Absences due to medical treatment of cancer or serious illness
Form and effects of dismissal for objective reasons
Companies that are obliged to dismiss a worker for justified but intermittent absences, must remember that this dismissal must meet the same requirements established in art. 53 of the Workers’ Statute. A company will therefore have to:
- Send a written notice to the worker indicating the cause of the dismissal (and including the working days of each month, the days of absence and cause thereof)
- Make available to the worker, simultaneously with the delivery of the letter of dismissal, the compensation of twenty days of salary per year worked, with a maximum of 12 monthly payments
- Respect the fifteen days notice period, computed from the delivery of the written notice to the worker until the effective date of the termination of the employment contract. Otherwise, the lack of notice must be economically compensated.
The objective dismissal for justified absences of work attendance contemplated in art. 52.d) should not be confused with the disciplinary dismissal included in article 54.2.a) of the Workers’ Statute, which refers to repeated and unjustified absences of attendance, namely, that is based on a serious and culpable breach by the employee.
This article is not considered as legal advice