Arriving late to work every day, leaving before your time or committing various irregularities in your day can cause your company to give you a warning, sanction you or, in the most serious cases, even apply a disciplinary dismissal for breaching the conditions you accepted in your employment contract.
However, as labor lawyer Juanma Lorente highlights in one of his recent videosif you do it repetitively and the company does not warn you for it, that violation can become your best ally to protect you from disciplinary dismissal.
Being late is bad, but it can protect you. The labor expert explains in his video a legal paradox in which the company’s inaction can turn an infraction into the best defense for a worker against a legal claim for disciplinary dismissal.
The lawyer explains the situation with a very simple example: “Imagine that you have been late to work for 2 years. 5, 10 or 15 minutes and the company does not tell you anything. You arrive and sign in with the real time at which you are arriving and the company tolerates it. From one moment to the next, after two years of arriving late, you find a dismissal letter in which they fire you for arriving late.”
According to Lorente, this dismissal would be unfair because the company allowed the “habit” of being late for two years, without reacting in all that time. The expert assures that this inaction represents a tacit permissiveness of that conduct, which is why it could not be used as a reason for dismissal before a judge.
Silence gives consent. Although it may be incongruous, since the employee’s violation is effectively proven, the repetition of this behavior without a response from the company is known as corporate tolerance.
As and how do they count From the Lex-it law firm, this case occurs when a company is aware of the worker’s repeated infraction, such as repeated delays, but does not sanction it for a long time. This means that a subsequent dismissal for the same reason is seen as unfair by the judges, since the company seemed to accept it and “tolerate” the infraction. As the labor lawyer points out, “If he has not previously sanctioned you for the same thing, has allowed it and has tolerated it, he will not be able to use it to fire you.”
This principle forces companies to follow a scale of sanctions that is applied from the first infraction of employees: from a simple specific warning to suspensions, before reaching disciplinary dismissal. Ignoring this scale of warnings means that the company cannot allege it as a “direct” reason for dismissal because, according to the court, the company tolerated this behavior.
The Supreme Court has already applied it. The Supreme Court has confirmed this doctrine in several rulings in which disciplinary dismissals have been rejected because companies have cited infractions as reasons for dismissal that they have tolerated for years without any warning.
The result in all cases has been to reject the disciplinary dismissals and declare them unfair dismissals with compensation of 33 days per year worked, despite it being proven that, in fact, the employee had been committing a violation of the conditions for a long time.
In one of those sentencesthe Supreme Court states: “Sanctioning with the greatest severity (disciplinary dismissal) conduct that had previously been tolerated, without any prior warning to the employee that such tolerance was going to end, would be contrary to the employer’s good faith.”
A practical example: he was late 176 times. A very clear example of this legal paradox is found in the case of the employee of an optician in Asturias who arrived late to her job up to 176 times without the company reprimanding her for it.
When the company informed him of his disciplinary dismissal, the Superior Court of Justice of Asturias considered it “irrational, disproportionate and incongruous.” The reason was that the company had demonstrated business tolerance by allowing 176 delays without warning or sanctioning the employee, and resorting directly to disciplinary dismissal.
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