New Royal Decree-Law 4/2020 Can I no longer fire a worker if they don't go to work due to illness?

After 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 topic. 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 lack of assistance, which were intermittent and were located in certain specific reference periods, even if they were justified, taking into account those faults that could not be counted for these purposes either because they constituted the legitimate exercise of a right or because they derived from specially protected situations.

Therefore, as established in the aforementioned article, it was indicated that the employer could objectively dismiss a worker who achieved alternately or 20% of the working days in two consecutive months, provided that the total number of lack of assistance 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. Adding the case law that “to apply the above-mentioned percentages, the periods integrated into those two or four months must be taken into account, regardless of what happens in each isolated month, which includes the periods mentioned as a whole”.

As for the list of non-computable faults, and to understand the context of the situation, we must always comply with what is established in each applicable collective agreement, since there could be situations excluded from the list made by the legislator, and other additional faults are also counted.

This list establishes the following faults that cannot be counted as absences due to: legal strike; for time spent exercising legal representation; accidents at work; maternity, paternity, risk during pregnancy, breastfeeding or diseases derived from childbirth or breastfeeding; those corresponding to paid leave with prior notice and justification; holidays; sick leave or accident at work with a duration of more than 20 consecutive days and agreed by official health services; medical treatment for serious illness or cancer; physical or psychological situation resulting from gender-based violence accredited by 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, through objective dismissal, in the face of any medical leave and in any situation? The answer is no, of course it was necessary to meet the requirements established in the current labor legislation.

Likewise, it is important not to forget that in our labor regulations there are sanctioning mechanisms to avoid all those unjustified absences from work, in accordance with the provisions of the applicable collective agreement, and always taking into account the specific case, through sanctions, whose maximum is disciplinary dismissal.

Royal Decree-Law 4/2020 itself, of February 18, establishes that objective dismissal for lack of attendance at work regulated in the 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, establishing the latter “the obligation to have mechanisms to counter and evaluate the specific situation on a case-by-case basis, in order to determine if the measure is proportionate”, presenting a”immediate regulatory correction to ensure that the doctrine established by the CJEU is properly applied in Spain.”, proceeding to the repeal, as of February 20, 2020, of this type of dismissal.

Therefore, it is necessary to establish that although it is true that this type of dismissal cannot be used for lack of assistance at work, justified or not, there is still the possibility of proceeding to impose sanctions on the worker in case of unjustified absences from work, through disciplinary dismissal, and it must be borne in mind that in the face of an illness of the worker what is necessary or what is important is not the knowledge of said illness, but rather if there is a justification to prove such absence due to illness, which is the which would differentiate it from the old objective dismissal, since in this case it would not be voluntary but a serious and guilty action on the part of the worker.

Mª Paz Abad (T&L Director)

Article published in the March edition From the monthly newspaper CEHAT