The Court of Justice is asked by the Social Court number 1 of Cuenca about whether the Directive of November 27, 2000, 2000/78/CE, of the Council , which refers to establishing a framework with equal treatment in the occupation and employment, opposes Spanish legality. Legality that allows an employer to dismiss one or more of his workers as a result of repeated and intermittent absences from his job, despite the fact that these absences may be consequences that can be attributed to the condition of said worker.
In other words, article 52.d of the Workers' Statute establishes the possibility of terminating the employment relationship due to objective dismissal as a consequence Whatsapp Mobile Number List of absences from work, even justified, but intermittent, that reach 20% of the working days in two consecutive months. Provided that the total number of absences in the previous twelve months reaches 5% of the business days or 25% in four discontinuous months, within a period of twelve months.
The consideration of the Court of Justice is in opposition to said regulation, since it implies indirect discrimination and goes against disabled workers. Although it qualifies that this discrimination could be accepted if, as the Government of Spain maintains, it really pursues the legitimate purpose of combating absenteeism and does not go beyond the limits established to achieve it. The Spanish judge is the one who must evaluate this assumption.