Fired for being sick: The new norm in Spain?
A change to the 2012 labor reform, which was upheld in October by the Constitutional Court, allows workers to be sacked for taking medical leave, even if they have a doctor’s certificate
Adriana Ampueda had been working for seven years at a call center run by Extel in A Coruña, in the northwestern Spanish region of Galicia, when she took 11 days off for gastroenteritis and aphonia. On Monday, when the 42-year-old Venezuelan returned to work she was fired – even though she had a doctor’s certificate. Spanish unions have identified a number of similar cases since October 29, when the Constitutional Court ruled that a company has the right to dismiss an employee who misses work for medical reasons, even if the sick leave was justified. “What do they want us to do? Lie to the doctor?” asks Ampueda.
What do they want us to do? Lie to the doctor?
Dismissed worker Adriana Ampueda
The people most affected by the court’s decision are women, elderly workers, or people with precarious or mechanical jobs, who in the employers’ eyes are expendable, according to the occupational health department of Comisiones Obreras (CCOO), Spain’s largest labor union.
Ampueda’s case is not isolated. Three other workers from Extel were fired for the same reason, as were five staff members from the clothing store H&M in Catalonia, and an employee from the Sirkari cleaning company in the Basque Country. There are more examples.
The practice is legal. The 2012 labor reform changed the article of the Workers’ Statute to allow employers to fire workers who miss more than 20% of their working days in two consecutive months, or at least 5% in the 12 months prior – even if they have a medical certificate. This is not the first time these criteria have been introduced, but it is the first time that they have been separated from absenteeism in the workplace. This means that it is much easier to fire an individual, because the decision is no longer dependent on whether other workers have taken leave.
The Constitutional Court has backed this change, which, according to unions, companies are taking advantage of to justify dismissals. “The sentence fits [businesses] like a glove,” says the CCOO.
The four former workers from Extel, which is a subsidiary of The Adecco Group, a multinational temporary staffing firm based in Switzerland, met the criteria to be fired for taking sick leave. “The doctor told me to rest for 72 hours for the fever. The company told me to come back to ask for short-term leave, and that was when they fired me,” she says.
The CEOE does not believe dismissals for health reasons are putting workers’ health at risk
Extel maintains that it followed regulations, adding that it has only fired 11 people from its 35,000-strong workforce in the last two years. “You have to stop and think why [dismissal for illness] was applied to them specifically,” says the company, without giving further details.
In the central Castile-La Mancha region, seven workers have been sacked since the Constitutional Court issued its ruling. Vanesa García, for instance, was dismissed from her job at ICSA Toledo, a subsidiary of the aeronautical company Aernnova, on November 25. García was diagnosed with a tumor 10 years ago, and took two years off for treatment. But when she returned to work, she continued to have health problems that stopped her from working. Another problem of the controversial labor reform is the ambiguity over what is considered cancer treatment and treatment for a serious illness, which is one of the exceptions under the law.
Dismissals since 2012
Isaac Rodríquez, a union delegate from CGT at the management service company Unísono, says 40 people have been fired by Unísono for taking medical leave since the 2012 labor reform came into effect. Rodríguez was the latest one. A week before the court sentence, he was sacked for missing work because he was suffering from a paralyzed optic nerve, vertigo and migraines. He had worked for Unísono for five years.
Alfonso Jesús Callejo, a delegate from the USO union, was also fired this year. He had been working at the Spanish food company Campofrío Fresco when he missed work after having two polyps removed. He had a medical certificate, and says the company’s own good-practices manual said his job cutting meat was incompatible with his recovery. “If you are feeling dizzy, do you still have to go to work and cut yourself?” asks Callejo.
Isaac Rodríquez was fired for taking leave for a paralyzed optic nerve, vertigo and migraines
The Spanish Confederation of Employers’ Organizations (CEOE) believes that dismissal for health reasons is not common, and doubts that it is putting workers’ health at risk, given they are “essential for business productivity.”
“If the CEOE says this article of the Statute is rarely used, it is assuming that does not serve to guarantee productivity,” says Jesús Lahera, a professor of labor law at the Complutense University in Madrid. According to Lahera, this article may invite companies to weigh up the cost of keeping a sick worker on staff, given they must pay their social security contributions and wages from the fourth to the 15th day of their sick leave.
Spanish unions are planning to take the case to the European justice system and call for the norm to be repealed. Until then, if that action is taken, the fired workers are left with a question: is the cure more costly than the illness?
English version by Melissa Kitson.