The Supreme Court sets out the circumstances in which absences from work may prevent the accrual of a length-of-service bonus
The ruling sets significant limits on this type of mechanism when absences stem from legally protected rights.
The dispute arose in a company whose collective agreement provided for a ‘long-service bonus’ consisting of additional days off for employees who could prove they had worked without interruption for full calendar half-years. The agreement only counted days of actual work, annual leave and statutory rest days as valid time for the purposes of obtaining this benefit.
The company argued that the purpose of this measure was to combat a high rate of absenteeism and maintained that certain justified absences should prevent the accrual of the incentive. The Supreme Court expressly recognises that combating absenteeism constitutes a legitimate aim from the perspective of employment policy. However, it points out that this aim cannot be achieved through mechanisms that give rise to discriminatory effects or that penalise the exercise of fundamental rights or work-life balance rights.
On this basis, the judgement states that the accrual of the length-of-service bonus cannot be affected by situations of temporary incapacity, suspensions of the contract linked to the birth and care of children, adoption or foster care, parental leave, absences due to family-related force majeure, and various types of leave related to work-life balance.
Of particular significance is the ruling concerning temporary incapacity. The Court states that excluding workers on sick leave from access to the bonus constitutes a difference in treatment based on illness or state of health, which is incompatible with Law 15/2022 on equal treatment and non-discrimination. Consequently, situations of temporary incapacity must not result in the loss of this contractual benefit.
Furthermore, the judgement finds indirect discrimination on the grounds of sex where the incentive penalises absences linked to the exercise of work-life balance rights which, statistically, predominantly affect women, as is the case with certain types of family leave or leave related to the care of children and relatives. It also identifies cases of discrimination by association where an employee is absent to care for sick relatives.
However, the Supreme Court does not completely eliminate the link between actual attendance and the length-of-service bonus. The judgement considers it lawful for certain ‘neutral’ absences to prevent the accrual of the bonus, as it does not find any violation of fundamental rights or discriminatory effects in these cases. These include leave for marriage, the death of a family member, a change of residence, the fulfilment of unavoidable public duties and even leave to sit examinations.
The ruling is of great interest to collective bargaining as it confirms the lawfulness of incentives linked to reducing absenteeism, but requires that their design respects the principle of equality and does not penalise situations protected by anti-discrimination legislation or linked to the exercise of rights relating to work-life balance, maternity, paternity or health.