The objective dismissal for failure to attend work established in article 52 d) of the ET has been repealed
Today, Royal Decree Law 4/2020 of 18 February was published in the Official State Gazette (BOE) number 43, which repealed the objective dismissal for lack of work attendance established in article 52.d) of the revised text of the Workers’ Statute Law, approved by Royal Legislative Decree 2/2015 of 23 October. Said repeal will come into effect as of tomorrow, February 20.
The formula for dismissal on the grounds of lack of work attendance established in Article 52.d) of the Workers’ Statute is a mechanism that legitimizes contractual termination with the right to reduced compensation in the event of both unjustified absences and medical leave for common contingencies lasting less than twenty days for the worker that exceed certain percentages, with these percentages referring only to the worker, and with no mechanisms in place that take into account the suitability and proportionality of the termination measure in relation to the situation of the company. It should also be borne in mind that Spanish law already provides for mechanisms to ensure that a person who has unjustified absences from work is punished [Article 54(2)(a) of the Workers’ Statute].
The objective dismissal for failure to attend work regulated in Article 52.d) of the Workers’ Statute has recently given rise to relevant judicial pronouncements, both by the Constitutional Court (Judgement 118/2019 of 16 October) and the Court of Justice of the European Union (Judgement of 18 January 2018, Ruiz Conejero case).
The Court of Justice of the European Union has indicated that it is legitimate to have an interest in reducing absenteeism in the company, but this cannot be done without taking into account the effect it may have on the group of people with disabilities (Judgments of the Court of Justice of the European Union of 11 April 2013, H.K. Danmark case; and of 18 January 2018, Ruiz Conejero case).
But not only dismissal due to absenteeism that falls on people with recognised disabilities can constitute indirect discrimination on the grounds of disability: indirect discrimination on the grounds of disability could also occur if the objective dismissal due to absenteeism falls on people with long-term illnesses.
In short, the legitimisation of any dismissal that may fall more frequently on persons with disabilities or long-term illnesses requires more intense guarantees than those currently provided for in Article 52(d) of the Workers’ Statute because, as the Court of Justice of the European Union warns, the right to non-discrimination on grounds of disability established in Council Directive 2000/78/EC of 27 November 2000 comes into play.
Furthermore, the Royal Decree states that there is another very important additional reason that must also be taken into account: the objective dismissal for lack of care established in Article 52.d) of the Workers’ Statute is likely to affect women in particular, given the greater participation of women in care activities, fundamentally because of the difficulties of reconciliation arising from multiple factors. Consequently, it may constitute indirect discrimination on the basis of gender.
The repeal of this provision by the present royal decree law is a response to the imperative need to avoid more conflicting judicial decisions at the internal level. At present, some courts interpret Article 52(d) of the Workers’ Statute in accordance with European legislation and case law, while others merely apply the percentage provided for in that provision without subjecting it to a judgment of adequacy and proportionality. Thus, for the sake of defending the constitutionally recognised principle of legal certainty, this Royal Decree-Law clarifies the terms of the issue and prevents the future issuance of internal judicial decisions that are contrary to the spirit and purpose of the European rule and the interpretation given by the ECJ to Article 2(2)(b)(i) of the Directive.