Dismissal for medical leave: The end of the controversial article that allows it

Dismissal for medical leave: The end of the controversial article that allows it

“From now on, no one is going to be fired for justifiable sick leave.” This is how the Minister of Labor, Yolanda Díaz, defended the Royal Decree-Law approved by the Council of Ministers, which implies the total elimination of article 52.d of the Workers’ Statute.

It puts an end to the so-called ‘dismissal by absenteeism’, which allowed employers to dismiss with a compensation of 20 days per year worked and a maximum of 12 monthly payments to those employees who were absent 20% of the working days in two consecutive months (ie eight days), provided that the total of absences in the previous twelve months exceeded 5% of working days, or 25% in four months discontinued, even if they were justified by a doctor. A measure that was practically unused but that became topical after the Constitutional Court endorsed it at the end of last October.

“When we are sick we have to worry about only one thing: getting cured”, advocated the minister, who justified the fact that the Royal Decree Law has been used, something that should only be used in cases of urgent need. “We are talking about health, about respect, I think there are few occasions when this urgency is more justified,” said the Podemos deputy.

Another of the arguments she used for this derogation is that it also complies with the guidelines of the European Union Court of Justice, which in its ruling of 18 January 2018 had already warned Spain that the application of this form of objective dismissal, on the grounds of justified lack of assistance, was contrary to the Community directive, which prohibits discrimination on the grounds of disability. “With this derogation we are repairing an anomaly of our country with respect to the countries around us,” said Diaz, who also stressed that it had generated “alarm” among society. “From now on we prevent people, when they feel more vulnerable, from being fired,” he reiterated.

What the minister did specify is that this measure will not be retroactive, so that it will come into force from today, when the rule is published in the BOE, and will not have any effect on the disputes that were already underway, even if they do not have a final ruling. In this regard, the minister was pleased that with this derogation “we give legal certainty to the workers of our country”, as they now depend on what the judges decide.

Thus, from today, any dismissal of a worker for justified absence from work will be considered unfair and the employer may use the disciplinary dismissal to throw out the person who is repeatedly absent from work without justification.


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