{"id":22019,"date":"2026-09-10T10:05:46","date_gmt":"2026-09-10T09:05:46","guid":{"rendered":"https:\/\/belzuz.com\/?post_type=publicacion&p=22019"},"modified":"2026-09-10T10:31:51","modified_gmt":"2026-09-10T09:31:51","slug":"variable-pay-reduce-the-bonus","status":"publish","type":"publicacion","link":"https:\/\/belzuz.com\/en\/publicacion\/variable-pay-reduce-the-bonus\/","title":{"rendered":"Variable pay: can absenteeism reduce the bonus?"},"content":{"rendered":"

Supreme Court Judgment No. 522\/2026 of 29 May, Rec. 28\/2025 (ECLI:ES:TS:2026:2494)<\/a>, examines the dispute concerning the variable remuneration scheme applicable within a group of companies and, in particular, the treatment of certain absences for the purposes of calculating and receiving such an incentive.<\/p>\n

In the case under consideration, there was an Agreement dated 29 October 2021 which established a target-based variable remuneration scheme comprising different \u2018tiers\u2019 of targets. Under this system, once the degree to which the targets had been achieved had been determined, the final percentage of the bonus was reduced in proportion to the employee\u2019s absence rate when their absences exceeded 4 per cent<\/strong>, with absences for any reason generally being taken into account, subject to certain exceptions, such as those relating to risks during pregnancy, childbirth and childcare, or breastfeeding leave.<\/p>\n

Consequently, the issue in dispute was whether certain absences could be counted as absenteeism for the purposes of reducing the amount of variable remuneration<\/strong>.<\/p>\n

At first instance, the Labour Chamber of the National High Court, by its judgement of 28 October 2024, ruled that, under the system for calculating variable remuneration set out in the Agreement of 29 October 2021, no reductions could be applied in cases of temporary incapacity, regardless of the cause, reason or duration; absence due to force majeure as provided for in Article 37.9 of the Workers\u2019 Statute; unpaid leave as provided for in Article 58.1 and 2 of the Collective Agreement; and suspension from work and pay as a result of disciplinary action<\/strong>.<\/p>\n

Following an appeal against that ruling, the Supreme Court essentially upheld the National High Court\u2019s ruling, reasoning and concluding as follows:<\/p>\n

1. Combating absenteeism \u201cmay constitute a legitimate aim, but it cannot be tackled through measures that contravene anti-discrimination legislation\u201d.<\/h3>\n

Thus, the Supreme Court recognised that the incentive under scrutiny sought, amongst other aims, to increase productivity, improve quality and combat absenteeism. In this regard, it noted that, in accordance with the judgment of the Court of Justice of the European Union (CJEU) of 18 January 2018 (C-270\/16), \u201cthe fight against absenteeism constitutes a legitimate aim in the field of employment policy\u201d.<\/p>\n

Notwithstanding the above, it held that this objective \u201ccannot be achieved through measures that infringe the rights recognised in the Constitution or in legislation on equality and non-discrimination<\/strong>, in particular Law 15\/2022 of 12 July on comprehensive equal treatment and non-discrimination, and Organic Act 3\/2007 of 22 March on effective equality between women and men\u201d.<\/p>\n

In this regard, it reasoned that absences counted as absenteeism for the purposes of determining the amount of the incentive could not include those arising from illness or from certain measures to reconcile family and working life<\/strong>.<\/p>\n

2. It further reasoned that \u201ctemporary incapacity cannot be counted as absenteeism when this entails discrimination on the grounds of illness\u201d.<\/h3>\n

On this point, the Supreme Court, in line with the provisions of High Court Judgment No. 159\/2026, concluded that \u201cmaking the payment of a supplement conditional upon a certain level of attendance at work, whilst counting periods of temporary incapacity as absences, may constitute discrimination on the grounds of illness contrary to Article 2 of Law 15\/2022<\/strong>, unless there is an objective and proportionate reason justifying such differentiation<\/strong>, the existence of which must be alleged and substantiated by whoever seeks to defend its lawfulness.<\/p>\n

At Belzuz Abogados, S.L.P.<\/a>, we consider this judgement to be of particular interest as it defines the scope within which companies may link variable remuneration to absenteeism.<\/p>\n

Thus, the ruling highlights the need for incentive schemes to be designed and implemented in a manner consistent with legislation on equality and non-discrimination, paying particular attention to the treatment of absences arising from protected circumstances such as temporary incapacity.<\/p>\n

At Belzuz Abogados, S.L.P.<\/a>, as employment lawyers with experience in developing variable remuneration systems and policies, we will continue to monitor rulings and decisions such as this one, given the interest they may generate in terms of assessing and adapting the variable remuneration systems in use within companies.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"featured_media":18991,"template":"","categories":[],"area-de-practica":[224],"publicaciones":[530],"idioma-publicacion":[71],"areas-practica-publicacciones":[],"class_list":["post-22019","publicacion","type-publicacion","status-publish","has-post-thumbnail","hentry","area-de-practica-labor-law","publicaciones-ana-escandell-lucas","idioma-publicacion-ingles"],"acf":[],"_links":{"self":[{"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/publicacion\/22019","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/publicacion"}],"about":[{"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/types\/publicacion"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/media\/18991"}],"wp:attachment":[{"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/media?parent=22019"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/categories?post=22019"},{"taxonomy":"area-de-practica","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/area-de-practica?post=22019"},{"taxonomy":"publicaciones","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/publicaciones?post=22019"},{"taxonomy":"idioma-publicacion","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/idioma-publicacion?post=22019"},{"taxonomy":"areas-practica-publicacciones","embeddable":true,"href":"https:\/\/belzuz.com\/en\/wp-json\/wp\/v2\/areas-practica-publicacciones?post=22019"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}