This is how dismissal due to medical leave will be: unfair and 33 days of compensation
The Government legally ties together the reasons of extraordinary and urgent need to justify the elimination of this rule in force since 1977.
The Government is going to strike the first blow to the PP's labour reform next Tuesday, 18 February. This would be the repeal of article 52.d of the Workers' Statute, which has already gone through all the required procedures.
This is the law that currently allows companies to dismiss an employee for intermittent absences, even if justified by sick leave, and has been in the spotlight since the Constitutional Court supported the dismissal of a teleoperator who missed work on several occasions due to the severe pain caused by a herniated disc.
Minister Yolanda Díaz was involved in this matter from the moment she set foot in the Ministry of Labour, but its processing has been slower than initially expected for a simple reason: the measure requires a royal decree law that demands a justification of extraordinary and urgent need. For this reason, the legal services of the Ministry have been trying hard these days to legally secure the reasons that support this regulatory change to prevent it from being appealed and ultimately overturned by the Constitutional Court. And everything is now ready.
Once these formalities have been completed, the Council of Ministers will give the green light to the royal decree law next Tuesday and it will come into force the day after its publication in the Official State Gazette.
With the repeal, the justification for dismissal despite having sick leave that motivates the worker's absenteeism will be eliminated as an objective cause. Therefore, if a dismissal occurs it would be unfair and, consequently, compensable with 33 days per year worked.
At present, an employer can dismiss an employee with an objective dismissal and compensate him with 20 days per year provided that he accumulates "absences, even justified but intermittent, that reach 20% of the working days in two consecutive months provided that the total number of absences in the previous twelve months reaches 5% of the working days or 25% in four discontinuous months within a period of twelve months", according to article 52.d of the ET. However, absences due to legal strike or exercise of legal representation of workers, work accident, maternity... or those due to medical treatment for cancer or serious illness are not counted.
As of next week, this article will be repealed and therefore the dismissal of a worker for having accumulated sick leave will no longer be based on objective causes and will consequently go from being considered fair to unfair, with the corresponding increase in the days of compensation, which will go from 20 to 33 days per year worked with a maximum of 12 monthly payments.
In the Statute since 1980
Although dismissal for absenteeism has been identified by PSOE and Unidas Podemos as one of the most damaging aspects of current legislation, the truth is that this type of dismissal was not introduced by the PP's labour reform, but has existed in the regulations since 1977, it has been contemplated in the Workers' Statute since its original version in 1980 and its use by employers has been marginal. But the TC ruling has caused a great social impact and that is why the progressive coalition has set to work to repeal it.
Without social dialogue
The Third Vice President for Economic Affairs and Digital Transformation, Nadia Calviño, has assured that "there is no delay" in the repeal of this article and justified that it is a regulatory project that is going through its administrative procedures. "The message is clear with our intention to eliminate this possibility of dismissal due to a chain of sick leaves and it is a project that is following its process and that will enter the calendar of the Council of Ministers at the appropriate time," she stressed.
The process, however, has not gone through social dialogue, with the executive limiting itself to informing both employers and unions of this repeal, but without specifying under what conditions, nor asking them for contributions to this legal modification. However, Calviño assured that the causes of absenteeism will continue to be addressed, that some must be dealt with within the framework of the Agreement for Employment and Collective Bargaining (AENC) and that others may require a series of actions by the Government. "This is a complex issue that will be addressed according to specific channels and rhythms," she concluded.
English 
Spanish