Article 52. d) of the Workers’ Statute allows the company to terminate the employment contract for absenteeism, even if justified but intermittent, when it reaches 20% of working days in two consecutive months (provided that the total number of absences in the previous twelve months before those two consecutive months reach 5% of business days) or reach 25% in four seperate and different months within a period of twelve months.
Given the literal nature of Art 52, we can affirm that the aforementioned legal precept establishes objective thresholds of absenteeism that would automatically enable the company to rescind the employment relationship with the worker, by paying the corresponding compensation of 20 days of salary per year of service (with a cap on annuity).
However, despite the clarity of Art 52, the Spanish labour court raised a preliminary ruling question before the Court of Justice of the European Union in order to verify whether its automatic application could violate Community legislation on equal treatment for disabled people (Directive 2000/78 / EC).
In particular, that question was raised in relation to a worker who had been dismissed for reaching the aforementioned absenteeism threshold after repeatedly taking time off work for medical reasons connected with his disability due to obesity and health problems with his spine.
The Court of Justice of the European Union has resolved this question by means of a Judgment dated January 18, 2018 (case C-270/16). This ruling establishes that the aforementioned article 52.d) of the Workers’ Statute could lead to indirect discrimination against persons with disabilities (due to their greater propensity to absenteeism), but adds that such discrimination may be justified by the legitimate aim of combating absenteeism, in which case the use of Article 52.d would only be acceptable if it constitutes reasonable means to achieve said purpose, a circumstance that must be evaluated in each case by the Spanish judges themselves.
Therefore, the aforementioned Judgment does not offer a unequivocal answer to the question raised, but it does offer the possibility that a dismissal in which the thresholds of absenteeism established by Article 52 (d) of the Statute of Workers are ruled as null and void on discriminatory grounds, will force the company to reinstate the worker and pay the administrative costs.
