What case did the court judge? The one of the employee of a teleoperating company in Barcelona that in 2016 made intermittent and justified absences from her post due to leave or medical visit as a result of lumbago. Beyond the origin of the dismissal, it was discussed whether the rule that justifies the termination of the contract is constitutional. What is the purpose of article 52 of the Workers' Statute? It is the article that aims at the reasons for a company to terminate the contract with its workers. It was modified in February 2012 as part of the Labor Reform so that the calculation of absenteeism was strictly personal instead of the previous system, which established that it should be set in relation to the total workforce in the workplace. And what absenteeism do you consider sufficient for a dismissal? To fit in the model of dismissal, the absences must reach 20% of the working days in two consecutive months but provided that in the previous 12 months the employee has missed 5% of the working days . It also fits if in the last year 25% of working days have been missing for four discontinuous months . If the dismissal is appropriate, the worker will be entitled to the legal compensation of 20 days per year worked up to 12 monthly payments. If it is not, it will be inadmissible and the company must pay greater compensation or reinstate the employee to their position. How many days would they be? Work schedules and the establishment of working hours vary greatly depending on whether the activity is commercial, administrative, industrial. .. According to the computation of the Statute and taking 21 days as working days in a month, the casualties during two consecutive months should be a maximum of 8.6 working days out of a total of 42. To these absences we would have to add another 11 days in the last year , that is, after 20 days of intermittent and justified leave for 14 months, the dismissal would be justified. With how many absences has the Constitutional Court endorsed the dismissal? The company argued that between April and May 2016 the worker had been absent for justified temporary disabilities nine business days in two consecutive months. Their absences reached 22.50% of the working days included in said period of time. In the previous 12 months the absences were 16 days, exceeding 7%. What type of excused leave are outside this assumption? The exceptions assessed include serious illnesses or cancer treatments. Also absences due to legal strike (for the duration of the work), the exercise of activities of legal representation of workers, accidents at work, maternity, risk during pregnancy and breastfeeding, diseases caused by pregnancy, childbirth or breastfeeding, paternity, licenses and vacations, illness or non-work accident when the leave has been agreed by the official health services and has a duration of more than twenty consecutive days , nor those motivated by the physical or psychological situation derived from gender violence, accredited by the services social care or health services, as appropriate.What was the question that was raised in the courts? The judge of Barcelona understood that the regulation of objective dismissal for absenteeism can condition the behavior of workers to the detriment of their constitutional rights to health and work because "in fear of losing employment, the worker may feel comp elido to go to work despite being sick, assuming a sacrifice at all enforceable, which could even complicate the evolution of his illness. "What position does the Constitutional assume? With an important division, he considers that these constitutional rights of the worker are not affected in this case. And it values ​​the business interest in defending their legitimate interests to protect themselves from the direct and indirect costs that labor absenteeism produces in the efficiency of workers' benefits.

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  • Barcelona
  • constitutional Court
  • Health