What Constitutes Unfair Dismissal Due to Absence in Spain?

Question from bea, What Constitutes Unfair Dismissal Due to Absence in Spain?

Answer from AI:

In Spain, the labor laws are designed to balance the rights of employees and employers. One aspect that often raises questions is the dismissal of an employee due to absenteeism and what constitutes unfair dismissal in these circumstances. It’s important to understand the legal framework to navigate these situations effectively.

Understanding Dismissal for Absenteeism

Spanish labor law allows employers to dismiss employees for absenteeism under certain conditions. However, the law also protects employees from unfair dismissal, ensuring that absences due to justified reasons or rights (such as maternity leave or sick leave with a medical certificate) are not grounds for dismissal.

Legal Threshold for Absenteeism

The legal threshold for absenteeism that can lead to dismissal is detailed in the Workers’ Statute (Estatuto de los Trabajadores). According to this statute, dismissal due to absenteeism is considered objective and can occur when:

1. The total absences from work reach 20% of the working days in two consecutive months, provided that the total absenteeism rate in the previous 12 months reaches 5% of the working days, or
2. Absences from work reach 25% of the working days in four discontinuous months within a 12-month period.

It’s crucial to note that these absences must be unjustified. Absences due to legal entitlements, such as maternity/paternity leave, accidents at work, or sickness justified with a medical certificate, are not included in this calculation.

What Constitutes Unfair Dismissal?

Unfair dismissal occurs when an employer terminates an employee’s contract without a justified reason or without following the proper legal procedure. In the context of absenteeism, a dismissal could be considered unfair if:

• The absences were justified or covered by legal entitlements.
• The employer did not follow the correct procedure for dismissal due to absenteeism, which includes providing written notice to the employee, specifying the reasons for dismissal and the date it will take effect.
• The calculation of the absenteeism rate was incorrect or included absences that should not have been considered (e.g., sick leave with a medical certificate).

Steps to Take if You Believe Your Dismissal Was Unfair

If you believe you have been unfairly dismissed due to absenteeism, it’s important to take the following steps:

1. Review your absences: Verify that the absences counted towards the dismissal were unjustified and that the legal thresholds were indeed met.
2. Seek legal advice: Consult with a legal professional who specializes in labor law to assess your case and advise on the best course of action.
3. File a claim: If advised by your lawyer, file a claim for unfair dismissal with the social court (Juzgado de lo Social) within 20 working days from the date of dismissal.

Conclusion

Dismissal due to absenteeism in Spain is regulated by specific legal thresholds, and any dismissal that does not adhere to these conditions could be considered unfair. If you are facing dismissal due to absenteeism, it’s crucial to understand your rights and the legal procedures involved. Consulting with a legal professional can provide personalized advice and help you navigate the complexities of labor law.

For more detailed information on the Workers’ Statute and labor rights in Spain, you can visit the official publication of the Workers’ Statute.

Remember: This information is provided for general guidance and is not a substitute for professional legal advice. Always consult with a legal professional for advice on your specific situation.