Absenteeism and remuneration: anti-absenteeism incentives coming under focus

Commentary on Supreme Court Ruling 40/2025, of 20 January

Abstract

The judgement under analysis reinforces and consolidates the case law on the limits and conditions of validity of anti-absenteeism clauses incorporated into the framework of performance-related variable remuneration agreements. The Supreme Court does not go so far as to partially annul the collective agreement on this point, but rather formulates a rule of ‘due interpretation’ that would prevent the application of those sections of the disputed clause that could lead to discriminatory outcomes. Pay gap based on absences due to illness or family care leave is deemed discriminatory. This tightens the jurisprudential requirements for the design and application of variable remuneration systems. In practical terms: the flexibility potential of variable remuneration linked intensely, but not exclusively, to work attendance and effective labor participation is reduced, and the Supreme Court eliminates the scope for using remuneration as a tool to combat absenteeism, except for unjustified absenteeism. Furthermore, it maximizes the protection associated with absences due to illness or health conditions or for family care, providing a significant guarantee of “remuneration immunity”, even for conventionally granted paid leave.