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A Constitutional Court ruling on the dismissal of workers who are on justified sick leave and the derogation of the controversial 2012 labour market reform are the main topics of interest in this article. This country update reports on the latest developments in working life in Spain in the fourth quarter of 2019.
In early November 2019, the Constitutional Court confirmed the possibility for employers to dismiss workers who had been on justified sick leave for at least 20% of working days over a two-month period. The ruling clarifies a preliminary ruling of a social court in Barcelona for the possible violation of the fundamental rights of a worker who was dismissed after missing nine days out of 40 (eight of them justified). The ruling endorses the dismissal of the employee and declares Article 52 of the Workers' Statute as modified in the 2012 labour market reform, in line with constitutional principles. In its ruling, the Constitutional Court weighed the ‘freedom of enterprise and defence of productivity’ for employers against the right of fair dismissal for workers.
The ruling was heavily criticised by trade unions and they announced their intention to bring the case before the European Court of Justice and the International Labour Organization (ILO). According to trade unions, this ruling violates ILO Convention 158 on termination of employment. Article 6 of this convention states that the ‘temporary absence from work because of illness or injury shall not constitute a valid reason for termination’.
Unai Sordo and Pepe Alvarez, the general secretaries of the two most representative trade unions in Spain (Trade Union Confederation of Workers' Commissions (CCOO) and General Workers’ Union (UGT), respectively) emphasised the dangers of forcing employees to go to work despite being sick. Moreover, they said that this ruling reinforced their claim to abolish the 2012 reform.
Antonio Garamendi Lencada, the Chair of the Confederation of Employers and Industries of Spain (CEOE), made a positive assessment of the ruling and welcomed any mechanism to fight against the high levels of absenteeism. According to him, fraud in absenteeism is ‘an economic disease’, which ‘goes up when things are going well and goes down when things go wrong’.
Since its approval in 2012, the labour market reform driven by the former Rajoy government has become a major source of conflict and disagreement between trade unions, employer organisations and governments. Trade unions have placed the abolishment of this reform as a necessary condition before they will engage in social dialogue around collective bargaining or the labour market. The coalition agreement signed between the Spanish Socialist Workers’ Party and Podemos in December 2019 included the derogation of the reform as one of its key priorities. More specifically, the document proposes derogating three key aspects of that reform:
It remains to be seen whether the coalition government appointed on 7 January 2020 and headed by Pedro Sánchez will be able to face an agreement with social partners on these issues or will need to unilaterally derogate these elements from the law.
The coalition government formed after the general elections held in November 2019 unveiled an ambitious plan to fight against precariousness and promote quality employment. Among other policies, the new government wants to achieve this goal by derogating the 2012 labour market reform and developing a new Labour Code that would incorporate the protection of workers against social, technological and ecological challenges.
The new government has made its commitment to social dialogue clear, but the main employer organisation has already noted the risks of derogating the labour market reform.
The new government faces an uphill battle to reach a consensus with the social partners on these issues.