objective dismissal for Repeated Sick Leave

DISSENTING OPINION SUBMITTED BY JUSTICE MR JUAN ANTONIO XIOL RÍOS WITH RESPECT TO THE ruling DELIVERED IN CONSTITUTIONAL REVIEW PROCEEDINGS NO. 2960-2019.

With the utmost respect for the majority opinion of my fellow members of the Full Court on which the ruling is based, I express my disagreement with its legal reasoning and its operative provisions, which I consider should have upheld the constitutional challenge on the grounds of infringement of Articles 15 (LA LEY 2500/1978), 43 (LA LEY 2500/1978) and 35.1 of the Spanish Constitution.

My dissent from the dismissal of the present question of unconstitutionality in relation to the alleged breach of Articles 15 and 43 of the Spanish Constitution coincides with the position set out in the dissenting opinion submitted by Justice Ms María Luisa Balaguer Callejón, to which I hereby subscribe in this regard.

Likewise, my dissent from the dismissal of the present question of unconstitutionality in relation to the alleged breach of Article 35.1 of the Spanish Constitution coincides with the position set out in the dissenting opinion submitted by Justice Mr Fernando Valdés Dal-Ré, to which I hereby subscribe in this regard.

Madrid, 17 October 2019.

DISSENTING OPINION SUBMITTED BY JUSTICE MS MARÍA LUISA BALAGUER CALLEJÓN TO THE ruling ISSUED IN QUESTION OF UNCONSTITUTIONALITY NO. 2960-2019.

In exercise of the power conferred upon me by Article 90.2 of the Organic Law of the Constitutional Court (LA LEY 2383/1979), and with full respect for the majority opinion reflected in the ruling, I submit this dissent, setting out briefly the grounds for my disagreement with the decision and the reasoning underpinning it, in accordance with the arguments I put forward during the deliberations of the Full Court.

1. My colleague Mr Fernando Valdés Dal-Ré has set out, in one of the other dissenting opinions appended to the ruling with which I also disagree, an extensive argument maintaining that Article 52(d) of the Workers' Statute is incompatible with the right to work enshrined in Article 35.1 of the Constitution, a position I fully endorse. I shall therefore confine myself to noting that the provision under challenge gives legal sanction to a causeless dismissal, one that does not arise from any breach of the employment contract by the employee, contrary to the doctrine this Court established at a very early stage, which requires dismissal to be grounded in specific cause, failing which the constitutionally recognised right to work is infringed. As stated in STC 22/1981, of 2 July (LA LEY 187/1981), FJ 8, the right to work, in its individual dimension, "translates into the equal right of all persons to a particular job, provided the requisite qualifications are met, and into the right to continuity or stability in employment, that is, not to be dismissed in the absence of just cause".

I must add a further observation that illustrates how far this provision reflects the legislature's decision to place business interests above workers' rights. In its original wording, Article 52(d) did not consider solely the individual absence data of the employee in question, whose impact on the company's productivity is minimal, if not negligible, but set those data against the overall absenteeism rate across the company as a whole, which is the measure that can genuinely indicate the existence of an absenteeism problem within the company capable of affecting its productivity. However, the provision was amended by Royal Decree-Law 3/2012, of 10 February (LA LEY 1904/2012), which removed the collective workforce data and focused exclusively on the individual record of the employee whose contract was being terminated. Notably, that Royal Decree-Law offers no explanation for this specific change. It merely states that "objective dismissals on the same grounds have been characterised by an ambivalent body of judicial and case-law doctrine, in which a purely defensive conception of such dismissals has often prevailed, as a mechanism for addressing serious economic difficulties, whilst overlooking other functions they are intended to serve, namely as a channel for adjusting workforce levels to technical and organisational changes within businesses. This likely explains why companies so often opted to acknowledge unfair dismissal, avoiding court proceedings in which they had little confidence as to the prospects of establishing fair cause, and thereby having to pay unfair dismissal compensation plus the additional cost of interim wages." In other words, it is openly acknowledged that the Workers' Statute was reformed in order to make objective dismissal on objective grounds easier, since companies had found it difficult to carry out such dismissals under the previous wording, owing to the employee-protective approach taken by the courts in applying it. The reform is self-evidently unconstitutional.

2. My second point of disagreement concerns the use of freedom of enterprise as guaranteed under Article 38 of the Spanish Constitution (LA LEY 2500/1978) as the basis for the termination of the employment contract under Article 52(d) of the Workers' Statute, and its application as a mechanism for tackling workplace absenteeism. With regard to the content of the freedom enshrined in Article 38 of the Constitution (LA LEY 2500/1978), this Court has held that it does not recognise "the right to pursue any company whatsoever, but only the right to freely initiate and sustain business activity, the exercise of which is regulated by rules of very different kinds" (see, inter alia, STC 83/1984, of 24 July (LA LEY 9038-JF/0000), Legal Ground 3). Accordingly, where the Constitution guarantees the freedom to commence and maintain business activity, this implies, within the framework of a market economy, where this right operates as an institutional guarantee, the recognition, for private parties, of a freedom of decision not only to establish businesses and thereby act in the market, but also to set the company's own objectives and to direct and plan its activities in light of its resources and prevailing market conditions. Since business activity is grounded in a constitutionally guaranteed freedom, it must be carried out on equal terms; at the same time, it remains fully subject to the rules governing market regulation and the general economic order. As such, not every aspect of business activity can be regarded as falling within the scope of Article 38 of the Constitution (LA LEY 2500/1978), as this Court already held when excluding, for example, freedom of trading hours from its ambit [STC 225/1993, of 8 July (LA LEY 2414-TC/1993), Legal Ground 3 B)]. The freedom of enterprise recognised by Article 38 of the Constitution (LA LEY 2500/1978) must therefore be understood as a freedom of action, the freedom of a company to choose its own market, the exercise of which in conditions of basic equality is constitutionally guaranteed and whose respect defines the limits within which the constituted powers must necessarily operate when adopting measures that affect the economic system of our society (SSTC 37/1981, of 16 November (LA LEY 12943-JF/0000), Legal Ground 2; and 64/1990, of 5 April (LA LEY 1524-TC/1990), Legal Ground 4). It cannot, however, be regarded as an absolute or unconditional right (SSTC 108/2014, of 26 June (LA LEY 73523/2014), Legal Ground 3; and 53/2014, of 10 April (LA LEY 48583/2014), Legal Ground 7). That is to say, Article 38 of the Constitution (LA LEY 2500/1978) cannot in itself be taken to confer "the right to pursue any company whatsoever" or to carry it out free from any constraint or limitation (STC 35/2016, of 3 March (LA LEY 21117/2016), Legal Ground 3).

All of the above makes clear that not every business activity or decision can be brought within the scope of Article 38 of the Spanish Constitution (freedom of enterprise), and in particular, as regards the matter at hand, those measures aimed at controlling absenteeism through the termination of employees' contracts. Controlling absenteeism is a matter that relates to a company's internal operations and organisation, but it does not acquire a constitutional dimension that could engage Article 38. It may be addressed through various management tools and mechanisms, but not through dismissals that lack a valid cause, which, as I have already noted, conflict with the constitutional guarantee of the right to work under Article 35.1 of the Spanish Constitution, to the extent recognised by this Court, and which can never, under any circumstances, find protection in the freedom of company under Article 38.

3. Nor can I agree with the exclusion by the ruling of any analysis of the possible infringement, by Article 52(d) of the Workers' Statute, of Article 43 of the Spanish Constitution, which recognises the right to health protection, placing an obligation on public authorities to organise and safeguard public health through preventive measures and the provision of necessary services and benefits, read in conjunction, as it must be, with the right to physical and moral integrity under Article 15 of the Spanish Constitution. The risk that the provision in question poses to such integrity is plain, as reasoned in the referral order raising the question. Indeed, Constitutional Court Judgment 220/2005, of 12 September, cited in the ruling approved by the majority, itself acknowledges the positive dimension of the fundamental right to physical and moral integrity, in connection with the free development of one's personality and directed at its full realisation, "which is why it is essential to ensure its protection not only against the interferences already mentioned, but also against the risks that may arise in a technologically advanced society (Constitutional Court Judgment 119/2001, of 24 May, Legal Ground 5). Therefore, in order to establish an alleged violation of Article 15 of the Spanish Constitution, it is not necessary for harm to physical integrity to have already materialised; it suffices, for the purposes of finding the invoked right to have been infringed, that there exists a significant risk that such harm may occur (see, among others, Constitutional Court Judgment 221/2002, of 25 November, Legal Ground 4)", which is the case where a serious and real danger to the health of the person concerned is generated (Legal Ground 4).

Moreover, it is true that this Court has held that the right to health enshrined in Article 43 of the Spanish Constitution (LA LEY 2500/1978) constitutes a mandate expressed at constitutional level as a guiding principle rather than a fundamental right, and that it is therefore for the legislature to determine the appropriate mechanisms for giving it effect (STC 134/2017, of 16 November (LA LEY 176539/2017), Legal Ground 5). That said, the nature of the right to health as a guiding principle does not mean that Article 43 of the Constitution (LA LEY 2500/1978) is a purely programmatic provision, devoid of content and without any informing references, particularly as regards the legislature, which must give it shape pursuant to the mandate set out in Article 43.2 of the Constitution (LA LEY 2500/1978). On the contrary, the "recognition, respect and protection" of the guiding principles of social and economic policy contained in Chapter III of Title I shall inform "positive legislation, judicial practice and the actions of public authorities", as required by Article 53.3 of the Constitution (LA LEY 2500/1978). This constitutional declaration prevents such principles from being treated as provisions without substance, and requires that they be taken into account in the interpretation both of other constitutional provisions and of ordinary legislation (STC 19/1982, of 5 May (LA LEY 13501-JF/0000), Legal Ground 6). Or, put another way, "regardless of their greater or lesser generality of content, they set out binding propositions in terms that follow unequivocally from Articles 9 and 53 of the Constitution" (SSTC 14/1992, of 10 February (LA LEY 1872-TC/1992), Legal Ground 11; and 233/2015, of 5 November (LA LEY 156724/2015)).

I cannot accept that freedom of company or the defence of productivity, invoked through a more than questionable reference to Article 38 of the Constitution (LA LEY 2500/1978), can be placed above workers' right to physical and moral integrity, or above so fundamental a value as the protection of human health, which, as I have already noted, bears such a direct relationship to the rights guaranteed by Article 15 of the Constitution (LA LEY 2500/1978). Yet that is precisely where the interpretation of Article 52(d) of the Workers' Statute adopted in the ruling from which I dissent leads us. As the referring court points out, that provision may give rise to termination of the employment contract on objective grounds where an employee's justified absences stem from short-term illness or indisposition, even where those absences are covered by a medical certificate, which would effectively pressure workers into neglecting their own health in order to avoid missing work (particularly those who face the greatest difficulty re-entering the labour market). This could result in serious consequences for their individual health and, moreover, could generate significant public health risks. A straightforward bout of flu, for example, can by itself account for absences amounting to twenty per cent of working days over two consecutive months, and it is precisely in such cases that health authorities first advise people to remain at home to prevent more serious harm, especially those with chronic conditions, quite apart from the risk of contagion and spread of disease. What, then, is constitutionally more significant: the protection of physical integrity and individual health, as well as public health, or the defence of a company's productivity? Without question, the former.

Account must also be taken of the provisions of ILO Convention No. 158, ratified by Spain by instrument of 18 February 1985, whose Article 6.1 states that "temporary absence from work because of illness or injury shall not constitute a valid reason for termination of employment". And although, as noted in the ruling from which I dissent, paragraph 2 of that same article provides that the definition of what constitutes temporary absence from work, the extent to which medical certification will be required, and any possible limitations on the application of paragraph 1 shall be determined in accordance with the methods of implementation referred to in Article 1 of the Convention, this cannot be taken so far as to allow the legislature or collective bargaining agreement to establish limitations that wholly undermine the purpose of the rule set out in paragraph 1. That is precisely the effect produced by Article 52(d) of the Workers' Statute when applied, as in the present case, to absences resulting from illness or injury that have given rise to certified sick leave, particularly given that the legislature has not in any instance indicated that such limitations are intended to qualify the aforementioned provision of ILO Convention No. 158.

The circumstances of the claimant in the proceedings a quo are a paradigmatic example of what Articles 15 (LA LEY 2500/1978) and 43 of the Spanish Constitution (LA LEY 2500/1978) must not permit the legislature to do, or which must at the very least prompt the court to conduct a balancing exercise that rules out the possibility of applying Article 52(d), however much it may be argued that the (questionable) objective pursued is the defence of productivity through tackling absenteeism. As set out in the order referring the question of unconstitutionality, the claimant suffers from "a large migrated centrolateral left-sided disc herniation causing marked sacroradicular compression, producing lumbosciatalgia, and disc disease at L3-L4 and L5-S1". It is worth noting that virtually all of her absences were justified by certified sick leave or attendance at medical appointments, and that, in particular, the absences accounting for 20% of working days in two months were caused by certified sick leave for lower back pain, a condition directly related to her spinal complaints, which are hardly helped by her sedentary work as a call centre operator, performed over seven hours a day. Permitting the objective dismissal ground under Article 52(d) of the Workers' Statute to be applied in such circumstances directly contravenes the right recognised under Article 43.1, read in conjunction with Article 15 of the Spanish Constitution (LA LEY 2500/1978), and with the necessary respect for human dignity referred to in Article 10.1 of the Spanish Constitution (LA LEY 2500/1978), as one of the foundations of the political order and social peace. Given that diagnosis, it is clear that if the worker had continued to attend work on the days when she was suffering from conditions arising from her health problems, in order to avoid triggering the dismissal ground under Article 52(d) of the Workers' Statute, which hung over her as a constant threat, she would have faced a real and serious risk of her condition worsening, with an undeniable impact on her right to physical integrity.

Along the same lines, it is worth noting that the CJEU judgment of 18 January 2018 (LA LEY 20/2018), Ruiz Conejero (Case C-270/16), cited in the ruling endorsed by the majority as a further argument in favour of dismissing the question, is open to other interpretations more consistent with the Constitution when it comes to applying Article 52(d) of the Workers' Statute and assessing its application. Starting from the concept of "disability" set out in paragraph 28 of that judgment, within the meaning of Directive 2000/78 (LA LEY 10544/2000), defined as "a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers", and having noted that the rule under Article 52(d) of the Workers' Statute may place workers with disabilities at a disadvantage, thereby constituting indirect difference of treatment on grounds of disability within the meaning of Article 2(2)(b) of Directive 2000/78 (LA LEY 10544/2000) (§ 39), the judgment leaves it to the national court to verify whether the means employed by national legislation to combat workplace absenteeism are appropriate; whether the numerical thresholds set out in the provision under challenge were genuinely designed to serve that objective, having regard to all other relevant factors, in particular the direct and indirect costs borne by employers as a result of absenteeism; whether the provision has the effect of an incentive for employers to hire; and whether the means provided for therein do not go beyond what is necessary to achieve the stated objective, placing the provision in its broader context and taking into account the harm it may cause to the persons concerned, as well as whether the Spanish legislature failed to take into account relevant data relating in particular to workers with disabilities (§§ 44 to 51). In essence, what the Court of Justice of the EU (CJEU) makes clear is that, in cases where Article 52(d) of the Workers' Statute is applied, it is for the national court to assess, in respect of persons with disabilities, whether the means provided for in that provision do not go beyond what is necessary to achieve the stated objective of combating absenteeism (§ 56), since that objective constitutes the sole exception to the conclusion reached in the ruling of the Court of Justice of the EU (CJEU): namely, that Article 2(2)(b)(i) of Directive 2000/78 (LA LEY 10544/2000) precludes national legislation that allows an employer to dismiss an employee on account of that employee's justified but intermittent absences from work, where those absences are the result of illness attributable to the employee's disability (§ 57), which means it must always be verified that the measure genuinely pursues that objective.

4. Even more significant than the foregoing considerations is what I regard as the self-evident fact that the provision in question gives rise to indirect discrimination on grounds of sex, a conclusion that the ruling from which I dissent has failed to reach, despite the incontrovertible nature of the evidence.

The referring court, following the aforementioned CJEU judgment of 18 January 2018 (LA LEY 20/2018), indicates that discrimination on grounds of disability appears to be ruled out, but does not reach the same conclusion with regard to discrimination on grounds of sex. Moreover, this issue is implicitly present in the referring court's reliance on Article 35(1) of the Spanish Constitution (LA LEY 2500/1978), since that provision, in recognising the right to work and the other rights it sets out, expressly states in its final clause that "discrimination on grounds of sex" must in no case be permitted.

This aspect of the matter has not been addressed in the ruling adopted by the majority, despite already having been considered in our own case law, including very recently. Indeed, this Court stated in STC 145/1991, of 1 July (LA LEY 1743-TC/1991), Legal Ground 2, that the specific constitutional prohibition of discrimination on grounds of sex, as a marker of a woman's membership of a particular social group that has historically been subject to social, economic and legal undervaluation, "is also connected to the substantive notion of equality". That connection "makes it possible to broaden and enrich the very notion of discrimination, so as to encompass not only direct discrimination, that is, differential and detrimental treatment based on sex where sex is directly taken into account, but also indirect discrimination, which covers formally non-discriminatory treatment that, by reason of the factual differences existing between workers of different sexes, produces unequal and detrimental consequences through the differentiated and adverse impact that formally equal treatment, or treatment that is reasonably unequal, has on workers of one sex or the other as a result of their sex".

I must also refer here to the very recent ruling of 2 July, which examined in depth the prohibition of indirect discrimination on grounds of sex. Of particular relevance is Legal Ground 4(c), which addresses this issue in the following terms:

«with regard to indirect discrimination on grounds of sex, constitutional doctrine has adopted the concept developed by the case law of the Court of Justice of the European Union, referring to measures which, although formulated in neutral terms, adversely affect a significantly higher percentage of women than men: such measures are prohibited unless they are justified by objective factors unrelated to any discrimination on grounds of sex (Constitutional Court judgments 22/1994, of 27 January (LA LEY 12852/1994), Legal Ground 4; 240/1999, of 20 December (LA LEY 4083/2000), Legal Ground 6; and 253/2004 (LA LEY 138/2005), already cited, Legal Ground 7).

The concept of indirect discrimination on grounds of sex is now expressly enshrined both in EU law [Art. 2.1(b) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 (LA LEY 7671/2006), on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation] and in Spanish domestic law (Art. 6.2 of Organic Law 3/2007, of 22 March, on the effective equality of women and men (LA LEY 2543/2007), which transposes the EU acquis on gender equality into Spanish law).

The explanatory memorandum to Organic Law 3/2007 (LA LEY 2543/2007) highlights the transposition into Spanish law of Directive 2002/73/EC (LA LEY 11316/2002), amending Directive 76/207/EEC (LA LEY 217/1976) on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and of Directive 2004/113/EC (LA LEY 10552/2004) implementing the principle of equal treatment between men and women in the access to and supply of goods and services; Directive 2002/73/EC (LA LEY 11316/2002) has since been consolidated into the aforementioned Directive 2006/54/EC (LA LEY 7671/2006).

Likewise, Article 6.2 defines indirect discrimination on grounds of sex as "a situation in which an apparently neutral provision, criterion or practice puts persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are necessary and appropriate."

It should equally be noted that, when indirect discrimination on grounds of sex is alleged, there is no requirement to demonstrate, by way of comparison, the existence of more favourable treatment attributed exclusively to men. What is required, first, is the existence of a rule, or an interpretation or application thereof, that produces unfavourable effects for a group composed predominantly, though not necessarily exclusively, of women. Second, it must be shown that the public authorities are unable to prove that the rule giving rise to differential treatment corresponds to a social policy measure justified by objective reasons unrelated to any sex-based discrimination. In short, as affirmed in Constitutional Court judgment STC 253/2004 (LA LEY 138/2005), "in such cases, for the anti-discrimination right and obligation enshrined in Article 14 of the Spanish Constitution (LA LEY 2500/1978) to be considered violated, there must be distinct and detrimental treatment of a social group composed in a clearly predominant manner of women, with respect to relevant interests, and without sufficient constitutional justification that could be regarded as a permissible limitation on that right" (Legal Ground 7).

The incorporation of indirect discrimination as conduct prohibited under Article 14 of the Spanish Constitution (LA LEY 2500/1978) has implications for how such discrimination is analysed, since it necessarily requires consideration of statistical data (STC 128/1987 (LA LEY 855-TC/1987), of 14 July, Legal Ground 6), whether statistical data submitted by the referring court in the context of the relevant constitutional challenge, or statistical data updated by the Court of its own motion (STC 253/2004 (LA LEY 138/2005), Legal Ground 8)».

When, following the doctrine established in that ruling, we turn to the statistical data provided by Spain's National Statistics Institute (INE) and other official studies, we reach the unequivocal conclusion that Article 52(d) gives rise to indirect discrimination on grounds of sex, in that it disproportionately affects women. This is due to the adverse consequences of their dual burden: namely, their greater involvement in caring for children, persons with disabilities, and dependent relatives (both ascending and descending), alongside their working hours, circumstances which also take a toll on their health and negatively affect their performance at work.

The following figures are particularly illustrative in this regard:

A) According to a study conducted by Universidad Carlos III de Madrid in March 2009 (funded by the Ministry of Labour and Immigration), women experienced a higher number of episodes of temporary disability (IT) during the period under review (2005–2006), with sex emerging as a highly significant factor in characterising such absences. The authors of the study identified a plausible explanation in the fact that women are more susceptible to certain illnesses or accidents because, to a greater extent than men, they divide their time between paid work and domestic responsibilities, such as caring for young children or other dependent members of the household.

A more recent study (the VII Adecco Report on Absenteeism, June 2018) found that, of all temporary disability (IT) spells arising from general illness in 2017, 55% were taken by women and 45% by men. The rate of sick leave increases considerably with age, reaching 1,692 days per 100 men and 2,237 days per 100 women among those aged 49 and over. The report also highlights the particular impact of hormonal and physiological processes experienced by women which can, in some cases, cause discomfort leading to temporary disability (IT) leave on general health grounds or sporadic unjustified absences, triggered by the general malaise that some women experience on a monthly basis, by the changes associated with the menopause, or by increased musculoskeletal pain arising from female physiology itself. All of these factors may give rise to the need to take short periods of temporary disability (IT) leave or to be absent from work, circumstances which, for obvious reasons, do not affect male workers in the same way. These causes are compounded by others that contribute to higher rates of female absenteeism, including difficulties in reconciling family and working life, and the health effects of bearing both a professional and a domestic working hours, because, as the data set out below will demonstrate, women's involvement in family life continues to far exceed that of men.

B) Secondly, data from Spain's National Statistics Institute (INE) shows that in 2018 there were 1,538,200 single-parent households (81.88%) headed by a woman, compared with 340,300 (18.12%) headed by a man. Women in these situations therefore bear a far greater share of childcare responsibilities at every level, including managing illness, school needs, nutrition and so on, all of which inevitably has a negative impact on their professional lives.

C) Furthermore, also according to the INE, among employed persons aged 18 to 64 with dependent children under 15 (whether their own or their partner's), childcare responsibilities were found to affect employment in the case of 1,058,500 women (34.82%) and 550,900 men (14.81%). The most significant effect is a reduction in working hours, which affects 627,200 women compared with just 113,600 men.

Also noteworthy is the number of young children whose mother is in employment: 829,900 children aged 0 to 3, and 2,505,400 aged 3 to 12.

D) Finally, according to the INE's most recent survey on disability and dependency, the number of disabled or dependent individuals whose primary carer is a woman stands at 1,198,100, compared with 378,200 cared for primarily by a man. Of these, 414,700 are cared for by women who are also in employment, while 117,100 are cared for by men who are in employment. The impact of these caring responsibilities on carers' working lives is as follows:

- They have difficulty meeting their work schedules: 72,500 women and 20,000 men.

- Their professional lives are adversely affected: 83,600 women and 26,800 men.

- They have had to reduce their working hours: 63,700 women and 16,700 men.

In summary, of all carers whose work is affected, 219,800 are women and 63,500 are men.

To these figures must be added another highly significant statistic: according to the ILO, one in four women of working age is unable to work because she is exclusively dedicated to caring for a sick person.

The data presented reflect a clear social reality: whilst some progress has been made, with greater participation of women in the labour market, traditional gender roles persist, and women bear the burden of the double shift, professional and domestic, to a far greater extent than men. This situation has a significant impact on their health and their working lives. Combined with their physiological circumstances, it leaves women disproportionately exposed to short-term sick leave or absences arising from family responsibilities, circumstances that may fall within the scope of Article 52(d) of the Workers' Statute. It must therefore be concluded that the provision in question gives rise to clear indirect discrimination on grounds of sex, which should have led this Court to declare it unconstitutional on this basis as well, and indeed, above all others.

And it is in this sense that I submit my dissenting opinion.

Madrid, 17 October 2019.

DISSENTING OPINION SUBMITTED BY JUSTICE FERNANDO VALDÉS DAL-RÉ TO THE ruling ISSUED IN CONSTITUTIONAL REVIEW PROCEEDINGS NO. 2960-2019, TO WHICH JUSTICE CÁNDIDO CONDE-PUMPIDO TOURÓN HAS SUBSCRIBED

1. As I had occasion to express during the deliberations in these constitutional proceedings, I dissent from the decision adopted by the majority of the Full Court. For the reasons set out below, I take the view that the ruling should have upheld the question of unconstitutionality on the grounds of a violation of Article 35.1 of the Spanish Constitution (LA LEY 2500/1978).

2. The referring court invokes three constitutional provisions as possible grounds for the unconstitutionality of Article 52(d) of the Workers' Statute: Articles 15 (LA LEY 2500/1978), 43 (LA LEY 2500/1978) and 35.1 of the Spanish Constitution.

I have no objection to the Court's reasoning as regards the fundamental right to physical integrity under Article 15 of the Spanish Constitution (LA LEY 2500/1978). The provision in question establishes a legal framework for contract termination that does not directly affect health; and even if that assertion were open to question, it does not appear to meet the threshold of "seriousness" that our case law has required in order to establish a connection between Articles 15 (LA LEY 2500/1978) and 43 of the Spanish Constitution (LA LEY 2500/1978).

Nor do I perceive a direct breach of Article 43 of the Spanish Constitution (LA LEY 2500/1978), given that the provision does not exclude entitlement to the relevant healthcare benefits, which, in my view, is what that article must essentially guarantee in situations of illness of the kind falling within the scope of the provision under challenge.

3. I reach a different conclusion with respect to the right to work under Article 35.1 of the Spanish Constitution (LA LEY 2500/1978).

Before addressing that point, or rather, in order to properly contextualise it, some preliminary observations are warranted. It is worth noting at the outset that health is a pervasive and deeply underlying concern in the constitutional debate before us. As the Constitutional Court ruled in STC 139/2016 (LA LEY 87258/2016) of 22 July, the nature of the right to health (Article 43 of the Spanish Constitution (LA LEY 2500/1978)) as a guiding principle of social and economic policy under Chapter III of Title I of the Constitution does not mean that this constitutional provision is a purely programmatic norm, devoid of content or normative force. Insofar as the right to health underpins the termination framework under challenge, and is therefore linked to the right to work enshrined in Article 35.1 of the Spanish Constitution (LA LEY 2500/1978), the constitutional review must take this connection into account.

The significance of health protection is such that the Constitutional Court, despite its character as a guiding principle of social and economic policy, has reinforced its protective function by linking it, directly or indirectly, to fundamental rights, most notably in constitutional protection (amparo) proceedings. In this regard, and beyond the outcome of any individual ruling depending on the circumstances involved, and notwithstanding that this guiding principle is not itself amenable to amparo proceedings, its connection to fundamental rights has assumed a prominent protective role through its association with those rights. This has given rise to direct links drawn between Art. 43.1 of the Spanish Constitution (CE) and Art. 15 CE (STC 53/1985, of 11 April; 120/1990, of 27 June; 35/1996, of 11 March; 119/2001, of 24 May; 16/2004, of 23 February; 220/2005, of 12 September; 62/2007, of 27 March; 160/2007, of 2 July; and 150/2011, of 29 September), and Art. 21 CE (STC 195/2003, of 27 October, and 193/2011, of 12 December), as well as other connections that may be characterised as indirect or mediated, established by our case law, with the prohibition of discrimination (STC 62/2008, of 26 May) and with the right to personal privacy (see, inter alia, STC 196/2004, of 15 November).

The importance attributed to health and its protection has driven a strengthening of constitutional review standards, including those traditionally considered less searching, such as the standard applied under Art. 24.1 CE in relation to the duty to give reasons for judicial decisions (see STC 95/2000, of 10 April). Where principles such as the protection of health are at stake, this gives rise to a judicial duty of enhanced consideration of that fundamental right, a reinforced form of protection that approximates a requirement of constitutional correctness in judicial interpretation, guided by the orientation that Art. 43.1 CE imposes on all legal practitioners.

Even accepting the argument made in the preceding section, that there is neither the direct and serious interference required by Article 15 of the Spanish Constitution, nor a shortfall in protection linked to Article 43.1, the foregoing submissions serve to underline that, where health is at stake, constitutional scrutiny cannot be applied lightly, as though any objective circumstance or reference were sufficient to justify directly or indirectly undermining the coverage that the Constitution is designed to guarantee.

On that basis, and as I shall argue immediately below, the reading of Article 35.1 of the Spanish Constitution, in its dimension as a right to job security and continuity of employment, calls for a thorough, protective, and sensitive approach, given the necessary attention to health protection that is equally at stake in the context of the employment relationship.

4. The ruling approved by the full bench of the Court holds that no breach of Article 35.1 of the Spanish Constitution has occurred. It reaches that conclusion on the basis of the following reasoning: (i) the statutory provision under challenge does not dispense with the requirement of causation in dismissal, but rather introduces objectivity and legal certainty into the ground for termination based on workplace absenteeism; (ii) the provision balances the competing interests at stake, in that it defines the circumstances which cannot be counted as absences from work for the purpose of triggering the employer's right to terminate, and further provides for judicial review of that decision, such that it would not be possible, from this perspective (i.e. that of causation of dismissal), to find "that the delimitation of the objective ground for termination of the employment contract under the challenged Article 52(d) of the Workers' Statute infringes Article 35.1 of the Spanish Constitution, since it is not for this Court to assess the appropriateness or advisability of the legislature's choice, or whether it is the most suitable or the best available option"; (iii) the restriction on the right to work entailed by the provision, in its dimension as a right to continuity or stability of employment, "is justified by Article 38 of the Spanish Constitution, which recognises freedom of enterprise and charges the public authorities with guaranteeing and protecting its exercise, as well as defending productivity"; that is, the right to work may be subject to justified limitations when it comes into conflict with the recognition in Article 38 of freedom of enterprise, since the latter may "legitimise the statutory recognition, in favour of the employer, of certain powers to terminate the employment contract as part of the employer's management powers over the company"; (iv) the aim of reducing the economic burden that workplace absences place on businesses relates to the defence of the company's productivity (Article 38 of the Spanish Constitution), and the provision under review has not overlooked other relevant competing interests either, since "it contains highly qualified exceptions", which the ruling identifies by reference to the statutory provision; (v) the provision does not conflict with Article 6 of ILO Convention No. 158, since that Article permits the legislature, within its margin of discretion and by balancing the competing rights and interests, to impose limitations on the legal framework provided, as it has indeed done through the regulation contained in Article 52(d) of the Workers' Statute.

In short, as the final paragraph of the legal reasoning in the ruling clearly summarises, the Full Court's position is that there is no breach of Article 35.1 of the Spanish Constitution (LA LEY 2500/1978) in the restriction imposed on the right to work, because combating absenteeism is a legitimate aim grounded in freedom of company and the defence of productivity (Article 38 of the Spanish Constitution (LA LEY 2500/1978)), provided that the competing rights and interests are properly weighed. That balancing exercise is said to be satisfied by the exceptions to the general clause permitting termination of the employment contract on grounds of absenteeism, by the provision of corresponding compensation to the employee where the employer opts for dismissal, and by the possibility of challenging the termination before the employment jurisdiction.

5. There are some very fundamental objections to the reasoning set out above, which I regret having to raise precisely because they are so basic, yet the text as adopted leaves me no choice, however self-evident they may appear.

a) As the approved decision correctly recalls, the right to work, in its individual dimension (Article 35.1 of the Spanish Constitution (LA LEY 2500/1978)), is expressed "in the right to continuity or stability in employment, that is, the right not to be dismissed without just cause" (Constitutional Court judgments 22/1981, of 2 July (LA LEY 187/1981), Legal Ground 8; and 192/2003, of 27 October (LA LEY 2902/2003), Legal Ground 4). The point is that what our consistent and unwavering case law requires is not merely a cause that has been given objective form in legislation, but a "just" cause. Accordingly, finding that a statutory provision has defined a ground for termination in objective terms, without then examining whether the regulation genuinely answers to that description, amounts to nothing less than failing to conduct a constitutional review  ex Article 35.1 of the Spanish Constitution. (LA LEY 2500/1978)

b) Similarly, it amounts to no constitutional review at all to simply state that absenteeism as a ground for dismissal is regulated with certain exceptions built into the rule. What matters is not the existence of those exceptions as such, but whether the exception not provided for in the present case, which is precisely the subject of the dispute, renders the rule unconstitutional (by omission) on the basis of that characterisation of the ground, or whether it is instead compatible with the constitutional protection afforded by the right enshrined in Article 35.1 of the Spanish Constitution (LA LEY 2500/1978).

c) Nor does it constitute a constitutional review of "just cause" to declare that the objectives of tackling workplace absenteeism or reducing costs are legitimate, or that they concern the defence of the company's productivity. It is as self-evident that such a ground is legitimate as it is that it cannot serve as the basis for a dismissal in any manner or form, under any design or configuration whatsoever, since in doing so the legislature must comply with the Constitution and, consequently, with the right to work and, in particular, the requirement of just cause for termination.

d) It is equally clear that it is not for this Court to assess the appropriateness or advisability of the legislature's choice, nor to determine whether it is the most suitable or the best option available. It is just as clear, however, that the legislature, in exercising the powers conferred upon it by the Constitution, may not exceed the reasonable margin of discretion recognised by Article 35 of the Spanish Constitution (LA LEY 2500/1978) when regulating "absenteeism-based dismissal". Accordingly, affirming the first point does not amount to any review of the "just cause" for terminating the employment contract as formulated in the rule. This should go without saying, and it is remarkable that it needs to be stated at all.

e) Finally, the fact that the dismissal decision is subject to a compensation scheme or an appropriate legal remedy, and may be subject to judicial review, adds nothing to the assessment of the substantive constitutional validity of the legal framework set out in Article 52(d) of the Workers' Statute. Such validity can only be established if this Court examines whether the ground is "just", not merely whether the legislation recognises the existence of a ground, or whether that ground is subject to review or may give rise to compensation.

In sum: combating absenteeism is a legitimate objective; establishing a system of dismissal grounds linked to it is permissible; defining exceptions to the calculation of absences is a legitimate regulatory choice (indeed, an unavoidable one, ex Article 35.1 of the Spanish Constitution); and the availability of compensation and a potential judicial remedy are essential requirements. However, none of these elements provides substantive grounds for a constitutional review of the disputed legal framework from the perspective of Article 35.1 of the Constitution, since such a review can only be carried out by examining whether the primary and essential requirement imposed by respect for the individual right to work under Article 35.1 is met: namely, that the dismissal decision is based on just cause. This requirement is entirely independent of those factors; it depends solely on whether the ground in question is "classified" as "just or unjust", taking all relevant elements as established.

6. I wish to address point (b) of the preceding section in greater detail, that is, the unconstitutionality by omission ex Article 35.1 of the Constitution that I identified and which, in my view, arises in this case from the failure to include among the exceptions set out in the contested provision those short-term intermittent absences resulting from illness duly certified by the employee. As is well established, unconstitutionality by omission "can only be found to have occurred where the Constitution itself requires the legislature to fill a gap in areas not addressed by the constitutional text" (Constitutional Court Judgment 139/2016, of 21 July, Legal Ground 10). This is why, for instance, given the nature of the guiding principles of social and economic policy set out in Chapter III of Title I of the Spanish Constitution, it will rarely be possible to consider any given statutory provision unconstitutional by omission, that is, by reason of its failure, considered in isolation, to give effect to the mandate addressed to public authorities and, in particular, to the legislature, in which each of those principles is generally expressed (Constitutional Court Judgment 45/1989, of 20 February, Legal Ground 4).

The same conclusion cannot, however, be reached when it comes to a quasi-fundamental right, such as the right to work enshrined in Article 35.1 of the Spanish Constitution (CE) (LA LEY 2500/1978). First and foremost, because Article 53.1 CE (LA LEY 2500/1978) itself underscores the enforceability of its essential content, as a right recognised in Chapter Two of Title One. Moreover, lest there be any remaining doubt, the Court itself has taken clear and decisive steps to safeguard that essential content, not hesitating to link it to rights falling under Section One of Chapter Two of Title One of the Constitution, rights protected by the constitutional amparo procedure, even though the right to work is not itself eligible for such protection, given that Article 35.1 CE (LA LEY 2500/1978) is located not in that Section but in Section Two of the said Chapter Two of Title I CE, among what are referred to as the rights and duties of citizens. This position is well illustrated by Constitutional Court judgments STC 22/1981, of 2 July (LA LEY 187/1981), STC 192/2003, of 27 October (LA LEY 2902/2003), and the series of judgments STC 99, 100, 117 and 137/2001.

The content of all those rulings, and, prior to them, the very wording of Article 53.1 CE (LA LEY 2500/1978), reveals the enforceability of the essential content of the right to work under Article 35.1 CE (LA LEY 2500/1978) and, with it, the potential unconstitutionality by omission to which I refer.

Once we move into that terrain, the protection afforded by that right becomes operative, along with the guarantees it imposes. As I had occasion to argue in the dissenting opinion I submitted to STC 119/2014, of 16 July (LA LEY 85681/2014), in accordance with a systematic interpretation of the full body of individual and collective labour rights recognised throughout the articles of our Constitution (LA LEY 2500/1978), which form the foundation of the constitutionalisation of labour law, the laconic expression "right to work" in Article 35.1 CE (LA LEY 2500/1978) obliges public authorities, and the legislature in particular, to enact legislation and promote policy measures aimed at facilitating the creation not of just any work, but, to use the terms put forward by the ILO, of "decent" or dignified work: that is, productive work carried out in conditions of freedom, equity and security, enabling the employee to develop their personality and have their dignity respected (Article 10.1 CE (LA LEY 2500/1978)) within a legal framework in which workers' rights are recognised and actively defended, and workers themselves enjoy adequate social protection.

In line with this recognition of Article 35.1 of the Spanish Constitution (CE) and its scope, Constitutional Court Ruling 22/1981, of 2 July, issued in the context of a constitutional challenge against what was then the fifth additional provision of the Workers' Statute-1980, which established compulsory retirement at age 69, had to rule on whether that statutory provision violated Articles 14 and 35 CE. With regard to the latter, the Court set out that the "content" of paragraph one encompasses not only the freedom to work, but also "the right to a job" which, in its "individual dimension", "takes concrete form in the equal right of all persons to a given post, provided the necessary qualification requirements are met, and in the right to continuity or stability of employment, that is, the right not to be dismissed in the absence of just cause" (Legal Ground 8).

Consequently, when designing or reforming the legal framework governing dismissal, the legislature cannot disregard the right to work under Article 35.1 CE, whose essential content must be respected in all circumstances, as required by Article 53.1 of the Constitution itself. The process of subjecting dismissal to legal regulation, a process that has developed since the very origins of the employment contract, has not only been consolidated since the Constitution came into force, with no possibility of returning to the earlier model of ad nutum withdrawal from contract or unrestricted dismissal, but its regulation, and any reforms thereof, can only move in one direction: aligning its rules, and the interpretation of those rules, with constitutional requirements.

Beyond the consequences of the constitutional doctrine outlined above, we must also bear in mind the international and EU-level constraints, on which I shall take the liberty of referring to the observations I set out in the dissenting opinion mentioned earlier. It may, however, be worth recalling in particular ILO Convention No. 158 of 1982 on Termination of Employment at the Initiative of the employer, together with Recommendation No. 166 of the same date and title, both of which replaced the 1963 Recommendation. This highly significant Convention, ratified by Spain on 16 February 1985 and therefore incorporated into domestic law (Art. 96.1 of the Spanish Constitution), deserves particular attention for the wording of its Article 4, which states: "The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the company, establishment or service." Furthermore, the reliance placed by the ruling on the second paragraph of that same provision does not neutralise any potential infringements that national legislators may commit against the rights recognised in their constitutional texts. In other words, Article 6.2 did not authorise the national legislature to introduce the grounds for termination under review, insofar as those grounds breach Article 35.1. It goes without saying that the Constitution and the essential content of fundamental rights operate as absolute limits on the ordinary legislature, limits that cannot be eroded through the interpretation of Article 6.2 of ILO Convention No. 158 adopted by the ruling with which I disagree.

The foregoing arguments demonstrate that, however legitimate the aim of combating absenteeism may be, any system of termination grounds linked to it must respect the essential content of Article 35.1 of the Spanish Constitution. Merely asserting the legitimacy of action against absenteeism is not sufficient to justify a restriction on the constitutional right in question, nor to justify a legal framework that carves out certain exceptions. What is challenged here is not the exceptions that are expressly regulated, but rather the absence of an exception for the situation under dispute, one not provided for in the legislation, despite involving medically justified periods of illness attributable to no fault of the employee [absences described as "even when justified" in Article 52(d) of the Workers' Statute]. In short, the debate was whether excluding such intermittent, justified periods of illness was compatible with Article 35.1 of the Spanish Constitution and its requirement of a fair reason for termination. On that central question, the ruling I dissent from says nothing, confining itself instead to pointing to the existence of other exceptions, without genuinely addressing the constitutional legitimacy of the omission, that is, the failure to include such illness within the guarantee of fair grounds for termination that is at the heart of this case.

7. In my view, once all the foregoing has been considered, the only argument in the ruling that still stands is the invocation of Article 38 of the Spanish Constitution (LA LEY 2500/1978) as the purported basis for restricting the right to work enshrined in Article 35.1 of the Spanish Constitution (LA LEY 2500/1978).

In Constitutional Court Judgment 119/2014, of 16 July (LA LEY 85681/2014), in the unconstitutionality appeal No. 5603-2012, brought by the Parliament of Navarre against Law 3/2012, of 6 July, on urgent measures for labour market reform (LA LEY 12140/2012), the Court embarked upon a questionable line of reasoning which, as was to be expected, has led to rulings such as the one that is now the subject of my dissent, rulings that restrict and show little regard for the legal rights of workers.

Through repeated and persistent reference to the legislature's broad discretion in the field of social protection, to economic crisis, or, as I particularly wish to highlight here, to freedom of company, the Court's reasoning has all too frequently come to rest on factors that are external and extraneous to the rights genuinely at stake, treating those factors as reference points capable of delimiting the essential content of fundamental rights. This approach overlooks, in my view, the fact that Article 53 of the Spanish Constitution (LA LEY 2500/1978) anchors the protection and delimitation of the rights set out in Chapter II of Title I in their "essential content", and nothing extraneous to that content may therefore constrain them. Those other parameters or circumstances, which apparently take centre stage in the constitutional review, cannot serve as the driving justification for the constitutional outcome, even though an increasing number of rulings treat them as such.

Specifically, as I have indicated, I observe a relatively persistent tendency to invoke Article 38 of the Spanish Constitution when conducting constitutional review of labour legislation that affects the fundamental rights of workers and their representative organisations. The rights enshrined in that provision, which relates to what has been termed the economic constitution, are frequently set against the employment rights impacted by the legislation in question. The result is a purported conflict of rights that opens the door to a requirement for "balancing" or "proportionality" analysis in order to define their respective limits, a conflict which, in most cases, I do not consider to exist. This present constitutional ruling is no exception.

In my view, quite to the contrary, the legislative choices made by the labour legislator in concrete statutory provisions have, in the great majority of cases, no direct or certain connection, at most an indirect and remote one, with the guarantees and content enshrined in the provisions of the economic constitution that tend to be invoked. It is a well-established principle that the right to property relates to the company as an outcome, whilst freedom to run a company relates to the free pursuit of economic activity. That being so, neither Article 33 (which, fortunately, is not cited on this occasion) nor Article 38 of the Spanish Constitution plays any foundational role in the substance of labour regulation governing working conditions or in the sources of such regulation.

The right upon which the majority again places emphasis, as it did in the rulings on labour reform, is Article 38 of the Spanish Constitution, in its dimension of freedom to run a company. In essence, this encompasses what materially affects the right to initiate a business activity (what has been termed freedom of enterprise), as well as the right to conduct that activity on equal terms in the market. To the extent that free enterprise and equality in the market are genuinely at stake, sub-constitutional rules may be subject to a review of unconstitutionality measured against that constitutional provision. This is not, however, the case with the dismissal regime, not even in respect of absenteeism, unless we are prepared to accept indirect and tenuous connections as sufficient, or unless the constitutional review process is to be driven by the rhetorical construction of imprecise, derivative, indirect or potential conflicts between rights.

The clearest illustration of this is the case that gave rise to the present question of unconstitutionality, in which a specific employee was found to have been absent for a total of 7.84% of working days over a twelve-month period. To claim that such a circumstance puts the company's productivity at risk, and therefore engages Article 38 of the Spanish Constitution (LA LEY 2500/1978), seems to me a manifest disproportionality, to put it mildly. Equally disproportionate is the failure to acknowledge that the absences in question were justified, the disregard for the underlying health condition that must be protected (as noted earlier), and, more fundamentally, the overlooking of the fact that what freedom of enterprise truly safeguards is, at its core, the freedom of initiative and the ability to carry on business activity on equal terms, and nothing more.

In other words, the freedom of enterprise enshrined in Article 38 of the Spanish Constitution (LA LEY 2500/1978) does not extend to any and every measure that touches on business interests or the protection of economic interests. Not everything that affects those interests falls within the scope of that constitutional provision. It may be worth recalling, with reference to STC 53/2014 (LA LEY 48583/2014), that the Constitutional Court has held that Article 38 of the Spanish Constitution (LA LEY 2500/1978) "establishes the limits within which the constituted powers must necessarily operate when adopting measures that bear upon the economic system of our society" (STC 109/2003, of 5 June (LA LEY 2169/2003), FJ 15); that "[t]he right to freedom of enterprise is not absolute or unconditional, but is limited by the regulation of specific business activities that public authorities may put in place, limitations that must be established by law and must, in any event, respect the essential content of the right" (SSTC 18/2011, of 3 March (LA LEY 4951/2011), FJ 15; and 135/2012, of 19 June (LA LEY 93179/2012), FJ 5); and that such limitations must be "derived from rules that regulate the market in a proportionate and reasonable manner" (see, among others, SSTC 127/1994, of 5 May (LA LEY 17142/1994), FJ 6; 109/2003 (LA LEY 2169/2003), FJ 15; and 112/2006, of 5 April (LA LEY 23355/2006), FJ 8).

This, then, is where the core of the right recognised under Article 38 of the Spanish Constitution (LA LEY 2500/1978) lies. That provision protects economic activity in the market, not every element that may have a "derived impact" on the company, which is what this Court appears increasingly inclined to read into it. Put another way, Article 38 of the Constitution (LA LEY 2500/1978) concerns the rules governing the market economy; it does not extend to the sources of the employment relationship, the legal entitlements of workers, or the limits placed on the employment legislator when interfering with the fundamental rights of workers and their organisations, nor, for that matter, with those of employers (for example, in their capacity as holders of the right to collective bargaining).

In short, references to Article 38 of the Constitution (LA LEY 2500/1978), including the defence of productivity invoked so insistently by the majority, are frequently made without rigorous legal grounding, and the same lack of rigour runs through the ruling from which I dissent. That provision does not, in the first place, constitute an element in conflict with the regulation of dismissal, whether on grounds of absenteeism or cost reduction.

The defence of productivity is an economic concept that enters the legal framework as an indeterminate notion requiring statutory definition. This makes it particularly difficult to attribute any subjective content to it, at least in the absence of a definition in the constitutional text and without any sub-constitutional development. Given that this is precisely the situation here, invoking it in the approved ruling as a basis for justifying severe restrictions on the right to work in its most typical and essential dimensions amounts to nothing more than a rhetorical device devoid of legal substance or constitutional grounding. The brief references in our case law to the defence of productivity, as vague and imprecise as any, only serve to demonstrate the fragility of the justification that the majority seeks to find in Article 38 of the Constitution (LA LEY 2500/1978) in order to uphold the constitutionality of the provision under scrutiny here.

In short, the debate should have been framed, in accordance with a strict standard of constitutionality and in the absence of competing rights requiring a balancing exercise, around whether the grounds for termination are fair, insofar as they include intermittent, justified absences in the absenteeism calculation, weighed against the guarantee of job security to which Article 35.1 of the Spanish Constitution, as a matter of principle, gives rise.

8. It may be worth recalling, as a final point in this dissenting opinion, that Constitutional Court Judgment 62/2008, of 26 May, regardless of its ultimate outcome given the circumstances of that case and the right invoked therein, held that an employee's state of health, or more precisely their illness, may in certain circumstances constitute a ground of discrimination analogous to those expressly listed in Article 14 of the Spanish Constitution, falling within the general clause covering other personal or social circumstances and conditions set out in that same provision. Accordingly, not only the right to work and the safeguards against dismissal, but also the prohibition of discrimination, are engaged in such cases, since, as that ruling stated, that right may be infringed "when illness is taken into account as a segregating factor based on the mere existence of the illness in itself, or on the stigmatisation of the person suffering from it as a sick person, without any consideration that would allow that circumstance to be connected to the employee's capacity to perform the duties required under the employment contract".

In my view, where absences are justified and the employee's health is at risk, dismissal on those grounds is discriminatory in nature, deters the employee from exercising their right to protect their own health, and is grounded solely in the existence of the illness itself. There can be no fair grounds for termination in such a scenario, which runs contrary to the protection of health under threat of losing one's job. There is, therefore, unconstitutionality by omission, through a breach of Article 35.1 of the Spanish Constitution, as the measure lacks fair and legitimate grounds, and potentially also through the infringement of other fundamental rights, as noted above.

In the ruling from which I dissent, however, none of these points are addressed. The majority opinion goes no further than invoking freedom of company as a purported justification, or simply noting the existence of a business interest at stake, as though that alone automatically engaged Article 38 of the Spanish Constitution (LA LEY 2500/1978), or as though such a finding could, without further qualification or analysis, constitute just cause for a termination. To reason in that way is to overlook a fundamental principle: that a business interest, whatever its nature, cannot be legitimised through measures that infringe upon workers' constitutional rights (mutatis mutandis, STC 182/2005, of 4 July (LA LEY 1577/2005), Legal Ground 7).

It is in this spirit that I submit this Dissenting Opinion.

Madrid, 17 October 2019.

Signed: Fernando Valdés Dal-Ré

Signed: Cándido Conde-Pumpido Tourón