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ERTE workers who refuse to rejoin can be dismissed

| COVID-19 / News | Public and Regulatory Law

Alfredo Aspra analyzes the decision of the Madrid High Court of Justice (TSJ) of Madrid

The refusal of an employee on ERTE (furlough) to return to his or her position when the employer had withheld the workforce the option of early return is a cause for disciplinary dismissal. This is established by a ruling of the Madrid High Court of Justice (TSJ), which is currently extremely relevant considering that many companies are on ERTE due to force majeure by the Covid-19 are entering the phase of de-escalation.

Alfredo Aspa, Andersen Tax & Legal partner, states that nothing would prevent the employer from proceeding to the disciplinary termination of an employee who, being affected by an ERTE due to force majeure by the COVID-19 and duly authorized by the employment authority, refuses without just cause to return to work. Regardless of the reasons given by the employer for the case, he clarifies, these unjustified absences from work could justify the dismissal. Furthermore, he states that, in this case, the guarantee of maintenance of employment for six months would not be deemed to have been breached.

What reasons could the worker have for refusing to return to work?, There are no stated reasons for absence from work, as explained by Aspra, and it is up to the courts to assess the seriousness of the offence and the proportionality of the dismissal. He also states that one of the reasons that could be given at this time is the care of a child or dependent family member. Taking into account the employment measures approved to deal with the crisis, the worker may request an adaptation or reduction of the working day, of up to 100 %, which would allow the worker to be absent from his or her job in a lawful and justified manner.

You can read the full article in Cinco Días

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