Dismissal for unjustified absence from work

One of the most frequently asked questions we receive as expert employment lawyers is: How many days can you be absent from work without justification? The Workers’ Statute does not establish an exact number, but it does refer to repeated and unjustified absences or lateness as grounds for dismissal.

All grounds for dismissal are regulated by the Workers’ Statute and the collective bargaining agreements in force. These establish the conditions for objective and disciplinary dismissal, while judges have the authority to determine whether a dismissal is fair, unfair or null and void.

What is an unjustified absence from work?

Not all absences or instances of lateness are unjustified. In this regard, absences are considered justified when there is a demonstrable reason for them and they involve the exercise of one of the employee’s rights.

For example, this may include a temporary illness or an accident or illness supported by medical leave issued by a doctor. It also includes absences due to representing other employees, exercising the right to strike or fulfilling a public duty of any kind.

By contrast, when we talk about being absent from work without justification, we are referring to situations of absenteeism resulting from conduct for which the employee is responsible and which is culpable, voluntary and avoidable. For example, repeatedly oversleeping or claiming health problems without providing medical evidence.

Can you be dismissed for not going to work?

Article 54.2(a) of the Workers’ Statute regulates, as we have seen, repeated and unjustified absences or lateness as grounds for disciplinary dismissal.

It is important to remember that, in the event of disciplinary dismissal, the employee loses the right to receive compensation based on the length of time they have worked for the company. Nor is any notice period required.

Another frequently asked question in these cases is: If I am dismissed for being absent from work, am I entitled to a final settlement? The answer is yes. You retain your right to receive your final settlement and unemployment benefit, provided you meet the necessary requirements.

It is important to highlight that, according to the Workers’ Statute, absences must be repeated and unjustified, meaning that a one-off absence is not grounds for dismissal. Furthermore, the conduct must amount to a serious and culpable breach by the employee. If the dismissed employee challenges the disciplinary dismissal before the courts, the company will be responsible for proving that these requirements have been met.

How many absences justify dismissal?

Case law considers that an employee may be absent from work for three days without justification, although the applicable collective bargaining agreement must also be taken into account.

Let us look at several examples:

Pedro is absent from work for two consecutive days and cites personal problems but provides no supporting evidence. The company may consider these to be unjustified absences.

María arrives late for work almost every day. The company may issue several warnings and take disciplinary action against her. If the situation is serious and repeated, it may constitute grounds for dismissal.

Javier has been ill and has missed two days of work but has not provided a medical certificate. His company may consider these to be unjustified absences.

Consequences of being absent from work without justification

Being absent from work or arriving late without providing justification may have several consequences:

• Verbal warning.
• Written warning.
• Deduction from your salary for the days you were absent without justification.
• As a last resort, disciplinary dismissal.

What happens if I do not go to work for more than three days?

The company could dismiss you on disciplinary grounds, in which case you would not be entitled to compensation, or it could impose another sanction depending on the provisions of the applicable collective bargaining agreement: deduction of pay for the days you were absent, suspension from work without pay, etc.

Frequently asked questions about unjustified absences from work

Below, we answer some frequently asked questions about unjustified absences from work:

What factors do judges consider when deciding whether a dismissal for unjustified absences is fair?

They usually consider several factors: whether the company issued prior warnings to the employee, whether the company suffered any harm or loss, and the employee’s record, i.e. whether the conduct was repeated or a one-off occurrence.

What requirements must a dismissal for unjustified absences meet?

It must meet three requirements: the employee must be given a prior hearing, the dismissal must be communicated in writing, and the provisions of the applicable collective bargaining agreement must be followed.

What should I do if I am dismissed for unjustified absences?

You will have a period of 20 working days from the date you receive the dismissal letter to challenge it. First, with the advice of an employment lawyer, you must submit a conciliation request and, if no agreement is reached with the company, you may file a claim before the Social Court.

The dismissal may be declared fair, unfair or null and void if fundamental rights have been breached.

If you are dismissed for absences, what must your employer give you?

You must be given a dismissal letter clearly stating the grounds for dismissal and your final settlement.

Therefore, it is important to be cautious about unjustified absences and always provide supporting evidence when you are absent from work. If your company has dismissed you for unjustified absences, contact us. We have an extensive team of lawyers specialising in dismissals who will advise you, guide you and defend your rights throughout the entire process of challenging the dismissal.