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Absence thresholds triggering dismissal could be discriminatory

Makbool Javaid

In Ruiz Conejero v Ferroser Servicios Auxiliares SA, Spanish law allows employers to dismiss employees if their absences amount to 20% of working hours in 2 consecutive months, provided that total absences in the previous 12 months amount to 5% of working hours or 25% of working hours in 4 non-continuous months within a 12-month period. Ruiz Conejero is disabled. His absences met the thresholds and he was dismissed. He claimed that as the absences were linked to his disability, the dismissal was discriminatory. The Spanish Court sought clarification from the ECJ. The ECJ held that Spanish law was potentially indirectly discriminatory in such circumstances, unless, while pursuing the legitimate aim of combating absenteeism, the measures were a proportionate means of achieving the aim. Proportionality requires assessing: the cost of absence, whether reasonable adjustments could be made, whether recruitment and retention is encouraged and the potential adverse effects on employees.

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