Introduction

Absenteeism costs Spanish companies approximately €77 billion a year and has become such a pressing issue that the Ministry of Finance has announced measures to combat it in the public sector. Information regarding absenteeism will be published every six months so that the impact of these measures can be assessed.

Although the main reason for absenteeism is health, there are several others, such as:

  • a lack of employee motivation;
  • work-life balance issues; and
  • a lack of employer supervision.

Companies must be proactive in implementing measures and controls to reduce absenteeism. This update analyses measures that companies can take in order to reduce absenteeism (ie, preventive measures), as well as those set out in Spanish employment law (ie, reactive and coercive measures).

Preventive measures

Companies should implement the following preventive measures with regard to absenteeism.

Training Companies should develop policies on absenteeism which set out the rights and obligations of employees and employers and emphasise the importance of attending work regularly. Further, companies must invest time and resources in training employees on the consequences of absenteeism for both employees and employers. Where applicable, they should also provide information on the bonuses and awards in place for employees who comply with their obligation to attend work.

In this regard, employees should be aware of all preventive and coercive measures that companies can apply. This will prevent employees from claiming in an employment court that such measures were a surprise and therefore unfair.

Remuneration and benefits Attendance bonuses Article 26.3 of the Spanish Workers' Statute (SWE) sets out that salary structures, including base salaries and salary complements, will be determined by collective bargaining agreements (CBA) or individual employment contracts depending on:

  • the employee's personal circumstances; or
  • the company's situation.

The purpose of these salary complements is not to increase productivity, but rather to reward employees for:

  • completing their ordinary working hours;
  • attending work; and
  • achieving their ordinary productivity targets.

These complements take different forms (ie, a punctuality or attendance bonus or an award for non-absenteeism) and are provided under CBAs as various payments – for example:

  • a daily or monthly amount depending on the employee's number of attendance days;
  • a cap on the number of absences which, if exceeded by the employee, will result in non-payment of the relevant complement; or
  • an annual bonus payment depending on the level of absenteeism throughout the year.

Additional leave Employees may be rewarded with additional paid leave for continuing to complete their ordinary working hours.

The abovementioned measures aim to award employees' ordinary performance.

Controlling absenteeism A record may be kept to verify employees' working days and absenteeism rates so that the relevant:

  • attendance bonus can be granted; or
  • penalties can be imposed if unjustified absences are discovered.

This will prevent tolerance of such behaviour by employers (which may make the imposition of disciplinary penalties harder) and the general acceptance of such behaviour by employees.

Further, companies may publish absentee rates to increase awareness among employees.

Promoting work-life balance Measures such as teleworking may be imposed to increase employees' personal involvement with a company. Under Article 13 of the SWE, it is possible to mutually agree full or part-time teleworking. Teleworking is considered a positive measure, as it improves the level of absenteeism by allowing employees to self-manage their work and better reconcile their professional and personal lives without impacting productivity.

Managing justification of absenteeism A common practice is so-called 'micro-absenteeism' (ie, absenteeism for periods of less than three days), which is based on employees' general belief that they are not legally required to provide justification for absences until the third consecutive day. This is because the Social Security Law sets out that in the case of a common illness or non-work accident, the subsidy will be paid as from the fourth day of leave. However, this belief is wrong and companies – particularly those whose applicable CBA requires them to complement social security benefits – must require their employees to present the relevant official medical certificate of temporary disability from the first day of leave. As well as being a legal requirement, this also clearly has a deterrent effect on employees and will allow employers to take disciplinary measures in case of unjustified absences.

Adapting jobs Although there is no general regulation providing for measures to be adopted for employees with psychophysical limitations, companies may implement specific measures in this regard, as health and safety legislation declares that employers must offer protection to particularly sensitive employees. This has been developed through CBAs in different forms, including:

  • an acknowledgement that it is possible for employees to perform different activities;
  • training employees for a different position; or
  • granting employees leave until they have recovered.

Reactive and coercive measures

Spanish employment law provides for the following reactive and coercive measures in the event of employee absences.

Disciplinary dismissal Under Article 54 of the SWE, disciplinary dismissal is permitted in the case of:

  • repeated and unjustified absences from work; or
  • a breach of contractual good faith and abuse of trust at work.

In the first instance, there must be a certain number of unjustified absences within a certain period, generally set out by the applicable CBA. Further, the reason for such absence must be factors which were outside the employee's control and prevented them from attending work. The employer must prove the absences and the employee must justify the reasons for them.

In the second instance, an example scenario would be where an employee performs an activity that is incompatible with their temporary disability during that period. Spanish case law has evolved from a total prohibition on performing any kind of professional activity during a temporary disability to allow certain activities depending on their intensity and frequency and the impact on the employee's health when such activities are performed.

In both instances, the employer must provide written notification to the employee detailing the facts and type of misconduct on which the dismissal is based in accordance with the infringements set out in the applicable CBA. Otherwise, the employment courts will consider the dismissal unfair.

Objective dismissal Under Article 52.d of the SWE, an employee may be dismissed in cases of justified and intermittent absences where they represent:

  • 20% of the employee's working days over two consecutive months and the total number of absences in the previous 12 months represent 5% of their working days; or
  • 25% of the employee's working days over four non-consecutive months within a 12-month period.

Following an objective dismissal, employers must compensate employees for 20 days of each year worked, which can be spread over a maximum of 12 monthly instalments.

Comment

Due to the negative economic impact of work absenteeism, employers must implement preventive measures in order to raise employee awareness and enable them to avoid the implementation of coercive measures. In this regard, companies must establish clear policies or codes of conduct informing employees of the consequences of contravening their legal requirements and adopt a zero tolerance approach for unjustified and abusive absenteeism. Otherwise, any potential disciplinary action will be considered unfair.

In addition, the promotion of corporate social responsibility will contribute to a change in culture and improve working environments and employee health.

For further information on this topic please contact César Navarro or Elena Esparza at CMS Albiñana & Suarez de Lezo's Madrid office by telephone (+34 91 451 9300) or email (cesar.navarro@cms-asl.com or elena.esparza@cms-asl.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.

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