Managing unauthorised absence from work: recent Spanish case law

The High Court of País Vasco (Spain), in its judgment of 17 November 2015, established that unexcused absences do not necessarily mean a voluntary resignation of the employee. In the relevant case, the employee did not return to work after a leave that she took on personal grounds. The company decided to deregister the employee with the social security system, on the understanding that she had resigned.

The High Court of País Vasco revoked the judgment issued by the 1st instance court and deemed that the de-registration was, in fact, an unfair dismissal because the employee had not made clear her intention of leaving the job. According to the Court, it is irrelevant that the company had previously warned the employee that the absence might be deemed a resignation.

On the other hand, according to the High Court of Galicia judgement of 12 February 2016, unexcused employee absences may not be a fair reason for a disciplinary dismissal. From the beginning of the employment relationship, the employee had a close friendship with the owners of the business. As a result, she enjoyed a certain flexibility regarding work schedules and working time. In this context, the employer decided to dismiss the employee for some absences from work. The Court deemed that the dismissal was unfair given that the employee had not been expressly warned about the need to comply with the working time rules.