Clauses on absenteeism in collective bargaining following Law 15/2022: interpretation in the courts and room for manoeuvre in this regard

Abstract

Absenteeism, or rather, high levels of absenteeism, is undoubtedly among the most pressing concerns in the realm of labor relations. In this regard, the absenteeism rate reached 6.7 percent of agreed working hours in 2024, while in the first quarter of 2025 it rose to 7.5 percent, a new all-time high. In this context, it was traditionally common in collective bargaining agreements, or even in company policies, to implement certain financial incentives to reward or, where appropriate, penalize workers based on specific absences from work. These incentives varied greatly in nature, but essentially all served the legitimate purpose of combating absenteeism, as interpreted by European and domestic case law, both at the ordinary and constitutional levels. Following the enactment of Law 15/2022 of July 12, the Comprehensive Law for Equal Treatment and Non-Discrimination, the consideration of counting certain absences from work due to temporary incapacity or the exercise of work-life balance rights as instances of discrimination has entered this debate. This represents a complete reversal in the interpretation of our courts, the effects of which we cannot ignore. In this paper, after providing an overview of collective bargaining in this area in 2025, we analyze the court rulings issued before and after the enactment of Law 15/2022 in order to ultimately answer the crucial question of whether, after this new interpretation, there is still room to continue implementing these types of clauses.