Art. 52.d of the Workers Statute allows dismissal for repeated absences even if justified. Analysis of the legal percentage, computation exclusions and TS case law after the CJEU ruling.
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.
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.
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.
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).
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.
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