Spain: How to calculate the absences of work assistance for an objective dismissal

The employee provided services for the company until the 14^th February 2014, when he was dismissed for justified but intermittent absences from work. The company alleged that in the period from the 18^th November 2013 to 17^th January 2014 the absences due to medical leave for common contingencies exceeded 41.8% of the working day; and also, that in the period from the 18^th January 2013 to 17^th January 2017 they represent 8% of the total.

The employee submits a claim for dismissal, which was estimated for the social court and confirmed by the High Court of Justice who understood that the total absences did not exceed the threshold of 5% in the 12 months prior to the dismissal date, and that the calculation of absences must be made from the 18^th November 2013, also that in the period of 12 months the temporary incapacity periods should not be computed, since otherwise it would be to infringe the principle of non bis in idem. Dissatisfied, the company filed an appeal for the unification of doctrine.

The issue to be discussed before the Supreme Court is to determine how the 12-month period in which the absenteeism rate of 5% is required for dismissal due to objective causes (dies ad quem) is computed. In particular, which is the day from which the term of 12 months must be counted back, whether from the date of dismissal or from the date indicated for the company in the communication to the employee (17-1-2014).

The TS considers that the dies ad quem for the computation of the term of 12 months must be the date of the dismissal since it is the one that determines the applicable regulation. Remember that the ET art. 52.d) establishes two computable periods:

– 20% absences of attendance in 2 consecutive months or 25% in 4 discontinuous months (short period);

– 5% of absences of attendance in a period of 12 months (long period).

The TS considers that, both the period of 2 or 4 months in its case (short period), coincide with the period of 12 months (long period) since the difference between both lies exclusively in the volume of absences that varies depending on whether, these are produced in consecutive months or in discontinuous months, but not in relation to the total months of computable absences, which are common of 12 months.

In the stated case, it is proven that the 18 absences of assistance that are within the period to be considered (15^th February 2013 to 14^th February 2014), represent more than 5%.

For this reason, the appeal for the unification of doctrine raised by the appellant company was estimated and the claim was dismissed.