New Royal Decree-Law 4/2020 Can I no longer dismiss an employee if he/she does not show up for work due to illness?

Following the publication last February of Royal Decree-Law 4/2020, of February 18, which repeals Article 52.d) of the Workers' Statute, many questions have arisen regarding this issue. And in order to clear them up, it is necessary to highlight the history and what was regulated in our labor legislation.

Article 52.d) of the Workers' Statute established that the employer could terminate the employment contract whenever the employee had a certain level of absences, which were intermittent and were located in certain reference periods, even though they were justified, bearing in mind those absences that could not be computed for such purposes either because they constituted the legitimate exercise of a right or because they derived from specially protected situations.

Therefore, according to the provisions of the aforementioned article, it was stated that the employer could objectively dismiss an employee who alternatively reached either 20% of the working days in two consecutive months, provided that the total number of absences in the previous twelve months reached 5% of the working days or 25% of the working days in four discontinuous months, within a period of twelve months. The case law adds that "in order to apply the percentages mentioned, the periods included in those two or four months must be taken into account, regardless of what happens in each isolated month, which counts with the periods mentioned as a whole".

Regarding the list of non-computable absences, and in order to understand the context of the situation, we must always refer to the provisions of each applicable collective bargaining agreement, since there could be situations excluded from the list provided by the legislator, and other additional absences could be computed.

Said list establishes the following non-computable absences as absences due to: legal strike; for time spent in the exercise of legal representation activities; accidents at work; maternity, paternity, risk during pregnancy, breastfeeding or illnesses derived from childbirth or breastfeeding; those corresponding to paid leave with prior notice and justification; vacations; illness or occupational accident of sick leave lasting more than 20 consecutive days and agreed by official health services; medical treatment of serious illness or cancer; physical or psychological situation derived from gender violence accredited by the social care services or health services, as the case may be.

Could it be understood that any company could proceed to unilaterally terminate the contract with the worker, via objective dismissal, in the event of any medical leave and in any situation? The answer is no, of course it was necessary to comply with the requirements established in the labor legislation in force.

Likewise, it is important not to forget that in our labor regulations there are sanctioning mechanisms to avoid all those absences from work without justification, in accordance with the provisions of the applicable collective bargaining agreement, and always taking into account the specific case, by means of sanctions, the maximum of which is disciplinary dismissal.

The Royal Decree-Law 4/2020 of February 18, 1920, establishes that the objective dismissal for absence from work regulated in Article 52.d) of the Workers' Statute, has given rise to different pronouncements, both by the Constitutional Court and the Court of Justice of the European Union, the latter establishing "the obligation for there to be mechanisms aimed at contrasting and evaluating the specific situation case by case, in order to determine whether the measure is proportionate", setting forth an "immediate regulatory correction in order to ensure that the doctrine established by the CJEU is properly applied in Spain", proceeding to the repeal, as of February 20, 2020 of said type of dismissal.

Therefore, it is necessary to establish that although it is true that this type of dismissal cannot be used for absences from work, whether justified or not, there is still the possibility of proceeding to impose sanctions on the employee in the event of unjustified absences from work, by means of disciplinary dismissal, It should be borne in mind that in the case of an employee's illness, what is necessary or important is not the knowledge of said illness on the part of the company, but whether there is a justification that accredits said absence due to illness, which is what would differentiate it from the former objective dismissal, since in this case it would not be voluntary but a serious and guilty action on the part of the employee.

MªPaz Abad (Director T&L)

Article published in the March edition of the monthly newspaper CEHAT