Clauses to encourage attendance at work and their limits
Conventional and company clauses linking the payment of a salary supplement, an incentive or a variable remuneration system to the level of attendance at work have recently been the subject of pronouncements by the Spanish courts in the framework of the new anti-discrimination regulations.
The Supreme Court, in its Ruling 40/2025 of 20 January 2025, dealt with an appeal in cassation against a judgment of the National High Court which had declared null and void part of an article of a collective agreement regulating an "improvement incentive" linked to productivity and absenteeism.
The high court confirmed that a clause establishing an incentive to reduce absenteeism is not automatically null and void, but that it may be legitimate as long as it is applied in a way that does not violate the principles of equality and non-discrimination, as required by Law 15/2022 on equal treatment and non-discrimination. The Supreme Court emphasised that an incentive aimed at combating absenteeism may take into account unjustified absences or leaves of absence that do not constitute discriminatory factors, but that absences whose inclusion may be contrary to anti-discrimination regulations, such as absences due to illness or legally protected reasons for work-life balance, must be excluded from the calculation.
Along the same lines, the National High Court, in Ruling 132/2024 of 28 October 2024 (rec. 227/2024), resolved a collective dispute brought by trade unions against a system of variable remuneration by objectives that applied a reduction coefficient when an employee's absenteeism exceeded a certain threshold and which, without clear exclusion, included periods of temporary incapacity, absences due to force majeure, unpaid leave and suspensions of the contract due to disciplinary sanctions. The Labour Court declared that reductions in variable remuneration could not be applied in these cases because their inclusion as a reason for discounting incentives entails unfavourable treatment for workers in a situation of illness and in other legally protected cases, which contravenes Law 15/2022.
The combined doctrine of these rulings establishes that clauses designed to encourage attendance and reduce absenteeism may be admissible as a contractual or company instrument, provided that they do not discriminatorily include absences arising from temporary incapacity or protected work-life balance rights. Law 15/2022 considers illness and health condition as autonomous causes of discrimination, so that automatically penalising absenteeism due to illness in the calculation of an incentive may constitute direct discrimination on the grounds of health. Likewise, counting leave related to the reconciliation of work and family life or absence to care for family members may constitute indirect discrimination on grounds of sex or association.
Consequently, the wording of attendance incentive clauses should clearly distinguish between absences that can influence the incentive (e.g. unjustified absences or unprotected leave) and those that should not be counted because of their discriminatory nature. The total elimination of references to absence in an incentive may have been considered by some courts as excessive if it deprives the incentive of its purpose, but it has also been established that it is not legitimate to reduce variable remuneration or a salary supplement for reasons that penalise legally protected situations, such as time off work or reconciliation leave.
Article written by ECIJA Madrid Labour Law Department.
