Spain: Spanish Supreme Court Judgement of 20 January 2025 (rec. 99/2024): Limits on Company Measures to Combat Absenteeism

Work absenteeism is a phenomenon that is understood to be detrimental to the interests of companies as it affects their productivity and operational efficiency.

This is also how it is understood by both the Spanish courts and the Court of Justice of the European Union. However, despite absenteeism being considered a damaging phenomenon for the business system, the measures taken by companies to reduce and prevent it can seriously violate some of the fundamental rights of employees.

Work absenteeism involves the absence of the employee from their workplace during the time they were supposed to be effectively providing services, and, therefore, the definition of work absenteeism encompasses both justified and unjustified absences.

To combat absenteeism, companies have developed endless stratagems that empowered companies to carry out: (i) disciplinary dismissals for unjustified absences and (ii) objective dismissals for high absenteeism rates (both justified and unjustified absences).

Thus, if an employee did not reach the threshold for being dismissed by disciplinary dismissal for unjustified absences, he/she could also be dismissed by objective dismissal if, when adding up the number of unjustified and justified absences, the absenteeism limits set by law were exceeded.

However, the regulations themselves excluded from the absenteeism calculation those absences that were justified on the grounds of maternity, paternity, or breastfeeding, and also expressly excluded absences due to treatment for serious illness.

Despite the fact that these situations were protected, the reality is that absences due to sick leave (except for serious illness) were counted to justify a dismissal on the grounds of absenteeism.

However, the Court of Justice of the European Union declared in the case of Chacón Navas v Eurest Colectividades (ECJ 11 July 2006) that the Spanish regulation was contrary to European Directive 2000/78, as it considered that the dismissal for absenteeism of an employee who was on sick leave constituted discrimination on the grounds of disability.

In this context, the Spanish legislator chose to eliminate the possibility of objective dismissal on the grounds of absenteeism because, in the end, if justified absences were to be excluded from the calculation of absenteeism, this would be the equivalent of disciplinary dismissal for unjustified absences.

This has led companies to develop increasingly surprising and imaginative strategies to combat absenteeism. In this sense, the Spanish multinational Verallia Spain, S.A. designed a monthly incentive that rewarded employees based on the results of the workplace. Once the incentive to be received by each employee at the centre had been calculated, a percentage (100%-70%-30%) was applied depending on the number of hours absences of the employee during the month, which included all absences except those arising from leave for the death of relatives.

After being challenged by the employees’ representatives, the Spanish Supreme Court, in its ruling of 20 January 2025, declared that the incentive was correct. However, in addition to not counting absences resulting from leave for the death of a family member, the Supreme Court stated that all those absences that are discriminatory should also not be counted, with express mention of discrimination on the grounds of illness or gender.

In conclusion, despite the fact that the Supreme Court has declared that it is possible to provide an incentive to combat absenteeism, it has made this conditional on not counting absences due to illness or for maternity, paternity, etc., so in practice, it leaves companies, once again, with no real possibility of fighting absenteeism with effective tools.

Therefore, the company can only resort to disciplinary dismissal for unjustified absences in addition to carrying out strict attendance control, as well as exhaustive monitoring of those workers who habitually engage in absentee behaviour in their workplace, under penalty of discriminatory acts.