September usually means the end of the holidays. Many return to work with charged batteries and are looking forward to getting back to work after the break, while others are anxious about returning to everyday work. Laziness and reluctance. Typical symptoms of post-holiday syndrome, which affects 37% of workers in Spain, according to the latest data from Adecco. In these cases, it must be taken into account that the company may fear sanctions, up to and including dismissal of the employee, if the employee’s indifference leads to a prolonged decline in performance.
In 2022, according to Social Security data, there were 365,896 dismissals for disciplinary reasons in permanent contracts, almost twice as many as in 2021. The employee’s decline in performance is one of the reasons for this dismissal. However, since it is the harshest sanction that the company can impose on an employee, certain conditions must be met for it to be appropriate. These are: that the employee’s decline in performance is voluntary, relevant and continuous over time and that it represents a setback compared to normal or agreed productivity.
“It’s a very individualized type of layoff,” says Mireia Sabaté, employment partner at Baker McKenzie. To decide on the origin, as the lawyer explains, the judges analyze each case taking into account the requirements of the job and the performance of the employee, which they compare with the activity of the employee himself at other times or in comparison with other colleagues with the same compare functions. “The courts usually declare it inadmissible due to the required comparison requirements, the proportionality and the difficulty of proof,” he emphasizes.
Adrián Pérez, legal director of employment at Eversheds Sutherland, agrees that in recent years the courts have taken a fairly restrictive stance in advocating these dismissals. In his opinion, this is a consequence of the fact that companies have long been unjustifiably abusing this opportunity to formalize dismissals.
Although few in number, there are cases where judges have endorsed disciplinary dismissals for poorer performance. For example, in a recent case decided by the Supreme Court (TSJ) of Andalusia, in which the dismissal of an employee who degraded his performance was seen as a pressure measure to protest against management’s reduction in incentives. For the court, the punishment was proportionate because his behavior was voluntary, culpable and solely attributable to him and he had the intention to cause damage to the company.
However, companies cannot punish a reduction in an employee’s performance that is attributable to causes external to them. Among other things, Fe Quiñones, director of the work area of Javaloyes Legal, emphasizes that the employer does not provide the appropriate means to carry out the tasks at the required pace, that these means fail, that the tasks to be carried out or the time has not been measured not required to execute them or the deadlines have not been adjusted correctly.
Reasons for an apology
Other reasons beyond the worker’s control that could excuse a drop in productivity, adds Adrián Pérez, are: a technical change in the way tasks are carried out, the business imposition of disproportionate or objectively unattainable objectives or the existence of specific circumstances B. the market or the company’s professional environment, which may affect the achievement of the employee’s goals. However, in a case resolved by the TSJ of Castilla y León in 2014, the general economic crisis was not enough for a dismissed seller to justify the decline in his sales. The court was of the opinion that this circumstance also affected his colleagues, who achieved significantly higher sales figures.
The key for a company to justify firing an employee due to poor performance is to have it supported by objective measurements. For example, to calculate an employee’s decline in productivity, according to Fe Quiñones, factory, project, call or sales measurements can be compared with another similar previous period or even with other workers performing the same activity. “It also needs to correlate with the worker’s attitude in general and their background,” he adds.
Mireia Sabaté emphasizes that most of the judgments confirming the origin of these dismissals analyze cases in which the dismissed workers pursued jobs related to sales. “His performance can be easily quantified based on formalized sales documents or new customers acquired,” he estimates. The problem arises, says the lawyer, when the worker’s productivity is difficult to quantify, as is the case with office jobs.
In any case, as Adrián Pérez points out, the parameters that a company must use when making this comparison must be objective, tangible and quantifiable. “The more unclear or subjective the goals agreed with the employee are, the more difficult it will be for the company to prove the existence of this reduction in performance in legal proceedings,” says the lawyer.
Another decisive factor in determining whether a termination due to poor performance can be declared appropriate is its duration. For example, in a 2017 ruling, the TSJ of Andalusia confirmed a disciplinary dismissal because the employee’s turnover was lower than the minimum performance provided for in the agreement for five months. “The courts will not accept this reason for termination if, for example, the drop in performance lasts for three days, i.e. it is a sporadic non-compliance due to exceptional or unforeseen reasons,” clarifies Fe Quiñones.
prior notice
The experts interviewed agree that it is strongly recommended that the company inform the employee if it notices a drop in performance. “Firstly, to prevent it from being seen as a tolerated attitude, and secondly, to give it the opportunity to improve,” says Mireia Sabaté, partner in charge of labor at Baker McKenzie. In fact, the existence of prior warnings from the company is usually decisive for the courts to agree to termination for this reason.
Thus, in a February 2019 decision, the Supreme Court of Galicia approved the dismissal of a worker whose boss had warned her and provided guidelines for returning to the path of productivity, but who had shown no signs of improvement for months.
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