Human Rights Court Endorses Dismissal After 15 Days Absence From Work


The European Court of Human Rights (ECHR) has rejected the claim of a Spanish family worker who was fired for being absent from work for 15 days as a result of chronic migraines, understanding that the decision to terminate her contract was not discriminatory .

The Strasbourg-based court has stated that the dismissal was based “exclusively” on his absenteeism rate and not on the alleged difference in treatment that could lead to a comparison with other people in a similar situation.

The ECHR notes that, despite the fact that the plaintiff considers that she has been discriminated against because a person with a disability was treated differently, she has never applied for disability status, “which could possibly grant her greater protection under labor law. ”

The applicant, GRM, who began working in September 2007 as a family home worker for a private company, was diagnosed in 2003 with chronic migraines with “monthly disabling episodes”.

According to the facts contained in the decision of the Strasbourg-based court, when this company was acquired by another private company in 2012, the plaintiff informed her new employers of her condition, providing medical reports. She was fired in June 2013 for ”

The company agreed to terminate his contract, relying on article 52 of the Workers’ Statute, because “between March 29 and May 27, 2013 he was absent from work for a total of 15 days.” This implied that the absenteeism rate rose to 38.46 percent of the working day in two consecutive months and 14.67 percent of the rate in annual terms, the dismissal letter indicated.

Against this decision, the plaintiff decided to go to court requesting the annulment of her dismissal, something that she achieved in September 2013 when the Labor Court number 33 of Barcelona ruled in her favor, declaring the decision adopted by the company discriminatory and null. a few months before.

The ruling classified chronic migraine as a disability and therefore considered that Article 52 of the Workers’ Statute was not applicable in that case. This resolution, which was not yet final, was then appealed by the defendant company before the Superior Court of Justice of Catalonia (TSJC), which revoked the judgment of instance and endorsed the dismissal considering that it was not based on the disease, but on the “number of short-term recurring absences” of the employee.

The TSJC considered that the dismissal was objective and not at all discriminatory, since, according to the company, not all of the plaintiff’s absences were due to migraines.

With all this, the dismissed worker appealed for protection to the Constitutional Court, considering that articles 14, 15 and 24 of the Constitution had been violated (which provide for equality before the law, the right to life and physical and psychological integrity, and the right to judicial protection), although the court of guarantees found that none of their fundamental rights had been affected.


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