Objective Dismissal for Absenteeism and Sick Leave in Spain 2026

# Objective Dismissal for Absenteeism and Sick Leave in Spain 2026

Article 52.d of Spain's Workers Statute allows termination when absences ( even if all justified (temporary incapacity/IT sick leave) ) exceed 20% of working days in two consecutive months or 25% in four non-consecutive months within twelve months, provided that the company's overall absenteeism exceeds 5% of working days in the same period.

Key exclusions from the computation

Not counted: strikes, work accidents, maternity/paternity/risk during pregnancy, holidays, gender violence, and any single continuous sick leave exceeding 20 consecutive days. Only short, repeated absences count.

CJEU ruling of 18 January 2024 (C-631/22)

The CJEU declared Art. 52.d ET may violate Directive 2000/78 when absences derive from a disability in the Directive's sense. The Spanish Supreme Court (STS 4ª, 6 June 2024) applied this and declared null a dismissal where absences caused by disability were computed. Employers must now verify (1) whether the worker has a disability, (2) whether absences link to it, and (3) whether reasonable adjustments were made before applying Art. 52.d.

Dismissal formalities

15 days' notice + simultaneous placement of 20-days/year severance (max 12 months). Failure to deposit severance simultaneously makes the dismissal unfair regardless of absenteeism percentages (STS 20 November 2018).

Outcome if null

Compulsory reinstatement + processing wages + potential additional fundamental rights compensation.

Lexiel calculates Art. 52.d ET percentages, finds CJEU and TS absenteeism case law and drafts conciliation filings and dismissal claims.