In a 2 November 2021 judgment,(1) the High Court of Justice of Castilla-La Mancha had to determine whether the disciplinary dismissal of an employee was justified, after he was unable to return to work due to a border closure between Morocco and Spain as a result of the pandemic.

The employee in question had been on annual leave in Morocco, which was due to end on 24 March 2020. However, due to the border closure, he was unable to return to Spain until 22 May 2020. On 16 April 2020, his company sent a registered fax informing him of his disciplinary dismissal due to unjustified absences from work since 25 March 2020.

The employee filed a claim to challenge the company's decision, requesting that the dismissal be declared unfair. The social court upheld this claim, as it understood that the employee had not been at fault for these absences as he could not have returned to work due to the international health emergency. In response, the company lodged an appeal on the grounds that the employee's absences could not be considered justified.

In its ruling, the High Court of Justice of Castilla-La Mancha ruled that disciplinary dismissal is the most severe penalty under employment law and it should only be applied in cases of severe and culpable contractual breaches. The ruling also cited Supreme Court case law, according to which minor infringements foreseen in the Workers' Statute or in any applicable agreements are not sufficient for a penalty to be imposed; instead, the situation must be analysed on a case-by-case basis. In this regard, the Supreme Court determined that:

work absences, or recurrent tardiness, do not constitute automatic or objective grounds for dismissal, but rather the specific circumstances of the case should be analysed, taking into account the moment they took place and their consequences.

The Court applied this precedent to its analysis and stated that the employee's absence was justified due to the impossibility of returning from Morocco because the border closure as a result of the pandemic had been proven. The Court also took into consideration that the closure did not affect long-term visa holders, which was the case for the employee. However, the Court pointed out that what was relevant to the present case was that the employee had had no means of transport to return to Spain. The employee was able to prove in Court that he had requested the Ministry of Foreign Affairs to return to Spain by plane and that he had finally managed to return by sea on 22 May 2020.

In view of the above, the Court concluded that although it would have been a sign of good faith for the employee to have promptly informed the company of his situation, the lack of such notification did not justify the company's conduct in imposing the most severe foreseen penalty and, in any case, the disruption of communications between Morocco and Spain due to the pandemic determined that the employee's absences could not be considered voluntary and unjustified. Therefore, the Court dismissed the appeal filed by the company and upheld the judgment of the social court that classified the dismissal of the employee as unfair.

For further information on this topic please contact César Navarro or Cristina Ridruejo at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] or [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at


(1) 1662/2021 [ECLI: ES:TSJCLM:2021:2683].