discriminatory

Getting sick if you work at Mercadona it can be very expensive. Not because of the medical leave itself, which is covered by Social Security, but because the days you spend recovering can take money away from the annual milestone bonus that the company distributes among its employees. A recent sentence The Supreme Court has given approval for Mercadona to deduct the proportional part of the sick leave periods from this objective bonus, and has made it clear that doing so does not mean discriminating against the worker for being sick. What the Mercadona agreement says. He article 31 of the collective agreement of Mercadona, valid until 2028, regulates the annual bonus that the company pays to its workers. To receive this bonus you must meet individual annual objectives, pass an assessment interview and have worked in the company for at least three months during the evaluated year. Its amount is a monthly payment of the salary of the professional group corresponding to the month of January of the year valued, and the company pays it during the first week of March. The point that has generated controversy is the one described in section c, which establishes that, if an employee accumulates more than 30 calendar days on sick leave common throughout the year, all those days no longer count as time worked for premium purposes. If the loss does not exceed that threshold, the days do count. On the other hand, sick leave due to work accidents, birth permits, risk benefit during pregnancy and paid leave are always considered time worked. The unions said enough. The Galician Inter-Union Confederation (CIG), which represents 1.7% of Mercadona’s workforce, took this clause to court with the argument that treating differently those who fall ill for work reasons and those who fall ill for common causes amounts to discrimination based on illness. The union relied on the violation of articles 2.1 and 4.1 of the Law 15/2022 on equal treatment and non-discriminationwhich expressly prohibits discrimination based on illness or health condition, something that before that law neither the Supreme Court nor the Constitutional Court recognized as a cause of prohibited discrimination. The National Court already rejected in September 2024 the lawsuit presented by the main unions with representation in Mercadona. Being on sick leave does not count as work. The judges’ reasoning in their ruling is based on a principle of labor law that many are unaware of, but which is included in the article 45.c of the Workers’ Statute: When a worker begins a medical leave, his or her contract is suspended. This means that, during this time of convalescence, the company has no legal obligation to pay the salary or any remuneration concept linked to actual work. As the CCOO and UGT unions pointed out in their writings to the court, during the leave there is no guarantee of equal pay with respect to the periods of effective work, and the company is not even obliged to pay the base salary, so it is not obliged to maintain the supplements for objectives. The Supreme Court says it does not discriminate. Regarding the difference between sick leave (for maternity or paternity leave, for example) and sick leave, the Supreme Court considers it justified because anyone who falls ill due to work has lost their health precisely for the benefit of the company, which deserves more favorable treatment. Furthermore, the Supreme Court remembers that it is the Social Security legislation itself that in its articles 156 and 157historically establishes those differences between professional contingencies and common, in aspects as varied as the requirements to collect benefits or their duration and amount. A victory with nuances. However, despite ruling in favor of Juan Roig’s company in the bulk of the matter, the judges have detected a specific point in the agreement that does violate the rights of workers. While reducing the target bonus proportionally to the days of sick leave is legal, preventing the employee from accessing that bonus system due to that sick leave is not. The ruling declares void the section of article 31 in which the days of common illness were excluded from the minimum calculation of three months necessary to be able to collect the objective bonus, even if it were for a lower amount as the Supreme Court has recognized. The practical consequence of this nuance implies that, if a worker has only been contributing normally for two months to collect that premium and the third month he takes it offthose sick days must count towards reaching the minimum three-month stay required to access the bonus. However, this bonus will be lower than expected because the company may reduce it proportionally to the days that have actually been worked. That is, the withdrawal cannot be a reason for exclusion from the count, but it can reduce the final amount of the premium. In Xataka | A company fired the same employee twice in eight months. The court has annulled them and returns to work with 25,000 euros Image | Wikimedia Commons (Carlos), Unsplash (Owen Beard)