how to act in the face of the increase in unjustified absences

Absenteeism at work: how to act in the face of the increase in unjustified absences

Faced with the increase in absences induced by the pandemic situation, Galibier Legal, a law firm composed of experts in labor law and a talent consulting firm, is alerting on how to face this growth scenario absenteeism.

First, it should be clarified that absenteeism refers to a habitual or repetitive pattern of absences from work by an employee, which is often characterized by absences that are not clear to the employer. These types of absences have been sharply increased over the past year due to the health crisis situation we are still struggling with.

Faced with this situation in which the worker is unjustifiably absent from work on several occasions, Galibier Legal recommends the following steps to be followed:

Analyze beforehand the disciplinary regime established in the reference collective agreement, in order to identify the possible consequences for the employee if he does not correct his attitude of absenteeism. In view of the alarming development of absenteeism, include in employment contracts a disciplinary reference to the consequences provided for in the collective agreement for such repeated behavior, in order to sensitize the worker. Show empathy with the employee, discuss with him to understand why this situation is occurring and thus try to find solutions, such as teleworking, and make him understand the commercial damage that his lack of assistance causes. Be willing to understand the employee’s need situation, if any, and take advantage of this circumstance to agree with the individual title, or with the works council, if it is found that it is a collective problem, an irregular distribution of the working day or other alternatives which do not lead to absenteeism at work. Set up a system for making up time not worked, if it is found that the absences have been sufficiently explained, although not justified.

It is important to implement an empathetic attitude and to seek alternative solutions, to the situation of absenteeism, since, in 2020, and as a consequence of the consideration as discriminatory because of disability, the dismissal for absenteeism by the Court of European Union justice, constrained, to establish “reasonable accommodations” in the work, before proceeding with the dismissal for absences with invalidating cause. As a result, the possibility of implementing objective dismissal for lack of attendance at work, established in Article 52.d) of the Workers’ Statute, has been abrogated in Spain, with the approval of the Royal Decree-Law 4 / 2020, of February 18, which repeals the objective dismissal for lack of attendance at work.

In this sense, Tirso Gracia, founding partner of the firm, declares “that it is very important that employers clarify to the entire workforce when it is considered absenteeism by the company. These types of absences mean a loss of capital and resources for the organization, as well as a disadvantage for the rest of the colleagues ”. He added, “from a legal point of view, we recommend concluding agreements with workers to avoid conflicts and dismissal situations”.

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