UK: Repeal Of The Rule Allowing Objective Dismissals For Excused Absences From Work

On 18 February 2020, the Council of Ministers approved the Royal Decree Law 4/2020 (hereinafter, "Royal Decree Law 4/2020"), of 18 February, (which has entered into force last 19 February 2020). The Royal Decree which repeals the objective dismissals for excused absences from work established in Article 52 d) of the Workers' Statute.

(i) Repeal of article 52.d) of the Workers' Statute.

Article 52.d) of the Workers' Statute allowed the termination of the employment contract by the company through the procedure established for objective dismissals because of absences of the employee from work that, although justified, reached the 20% of the working days in two consecutive months, as long as the total of the absences within the previous twelve months reached the 5% of the working days or the 25 % in four discontinuous months within a period of 12 months. The rule stated a few scenarios (absences) that did not be applicable to this type of dismissal.

Since this article has been repealed, the employer will not be entitled to dismiss an employee by objective dismissal for accumulating justified absences. However, it should be highlighted that, according to the Workers' Statute and, in many cases, further to the applicable Collective Bargaining Agreement, unjustified absence or lack of punctuality may be carried out by a disciplinary procedure that may involves sanction or, even, the employee's termination.

(ii) Will the repeal of article 52.d) of the Workers' Statute apply retroactively to ongoing dismissals?

The Royal Decree Law 4/2020 is not retroactive. Therefore, a priori it should not produce effects on proceedings initiated prior to the entry into force of Royal Decree Law 4/2020 (19 February 2020), which should be resolved through the application of the legal framework existing at the dismissal day (note that the judgements on dismissal proceedings produce declaratory effects rather than constitutive ones, so the termination date of the employment relationship will be the effective date of the dismissal).

However, as explained in the following section, we understand that there are mechanisms to challenge terminations carried out through the former Article 52.d) of the Workers' Statute and not ruled yet. For instance, regarding employees' termination during their medical leave cases.

(iii) Issues related to employees' terminations on medical leave

The position of our Courts before the termination of an employee on medical leave has not been always peaceful.

In this sense, the Judgement of the Constitutional Court N. 118/2019, of 16 October, ruled that Article 52.d) of the Workers' Statute was not contrary to the Spanish Constitution ("SC"), because it did not infringe either the right to physical integrity (Article 15 SC), the right to work (Article 35.1 SC ), or the right to health protection (Article 43.1 SC). Therefore, Article 52.d) ET (now repealed) complies with the Spanish Constitution.

However, in its Judgment of 18 January 2018, the European Court of Justice ("ECJ") warned Spain that the objective dismissal for excused absences set forth in Article 52. d) of the Workers' Statute (now repealed) infringed the Council Directive 2000/78/CE, which prohibits discrimination for disability reasons and, consequently, key points of the European law. The application of Article 52.d) of the Workers' Statute was allowed by the ECJ only in exceptional, limited and conditional cases and was subject to a specific adequacy and proportionality analysis.

Nonetheless, prior to Constitutional Court Ruling No. 118/2019, and from another different point of view regarding the analysis of Article 52.d) of the Workers' Statute, our Courts have occasionally declared null and void a dismissal of an employee on medical leave. By way of example:

(i) The Judgment of the High Court of Justice of Cantabria N. 45/2019, of 18 January, ruled null and void the termination of an employee on sickness leave because, according to the Council Directive 2000/78/EC, sickness leave must be understood as a kind of disability to work and therefore, the termination is discriminatory because it infringes the employee's constitutional right to physical integrity and health.

(ii) Judgement N. 472/2016 of 23 December 2016, of the Social Court n. 3 of Barcelona, declared null and void a dismissal that took place during an employee's sickness leave for the same reasons. However, in its Judgment N. 3767/2017 of 12 June 2017, the High Court of Justice of Cataluña overturned the judgment of the First Instance Court stating that sickness leave must not be considered as a disability. Likewise, the judgement stated that "the legal protection against discrimination of the disabled employees does not apply to people affected by simple sickness leaves ".

(iii) Judgement N. 274/2020 of the High Court of Justice of Cataluña, dated 17 January 2020, understood that Article 52. d) of the Workers' Statute infringed the EU rules international standards. In this sense, the above mentionned court, referring to the Constitutional Court judgement of 16 October 2019 stated that: "The judgement of the Constitutional Court N. 118/2019 (...) does not take into account the indirect discrimination that may involve terminations for intermittent absences from work because, statistically speaking, such terminations affect women more than men. (...) The statistical data shows a greater impact on women rather than on men in cases of terminations for intermittent justified absences based on sickness leaves ".

In the Statement of Reasons of the Royal Decree Law 4/2020, it is stated that the repealed rule was infringes the employees' Fundamental Rights. Therefore, according to the ECJ guidelines and, even though the Constitutional Court judgements stating the constitutionality of said article, it must be derogated. In addition, the Statement of Reasons states that, with the entry into force of the Royal Decree Law 4/2020, "it is therefore appropriate to immediately repeal Article 52. d) of the Workers' Statute in order to guarantee the non-discrimination right of employees, as well as to avoid the risk of social exclusion of groups of special vulnerability". 

Therefore, it cannot be excluded the risk that, in dismissals proceeding still in progress (not ruled yet), it could be argued that the repealed Article 52.d) of the Workers' Statute is not be possible and, therefore, the termination could be declared null and void as discriminatory, especially if we take into account the content of the Statement of Reasons of Royal Decree Law 4/2020, described above.

Likewise, bearing in mind the content of the Statement of Reasons of the Royal Decree Law 4/2020, it can neither be ruled out that, terminations of employees on sickness leave may be declared null and void because the infringement of the employee's Fundamental Rights as stated in the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment of employees. In this regard, some Spanish high courts of justice, such as the Basque Country's High Court, in a judgment of 16 July 2019, have ruled that unjustified terminations of employees on long sickness leave must be declared null and void because such situations are assimilated to disabilities cases. In this sense, the Basque Country's High Court legal arguments are based on the criteria set out by the Supreme Court (in its judgement of 15 March 2018) where it was ruled that the dismissal of an employee on sickness leave must be declared unfair rather than null and void, provided that the guidelines set out by the ECJ are not met.

Although we understand that terminations on sickness leaves are different from those situations stated under article 52.d) of the Workers' Statute (today repealed), since they are connected, it would be possible to apply the arguments set out in the Statement of Reasons of the Royal Decree Law 4/2020 and the case law included herein, to employees' terminations on medical leave, especially when a long-sickness leave exists.

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