Communicated on 20 September 2017

THIRD SECTION

Application no . 25284/16 Gloria RAVENTOS MARTINEZ against Spain lodged on 20 April 2016

SUBJECT MATTER OF the CASE

In 2003 the applicant was diagnosed with chronic migraines with “monthly incapacitating episodes”, as stated in the medical reports. On 20 September 2007 the applicant started to work as a “family worker” ( trabajador familiar ), first for the private company G.G and afterwards for the private company C., once the latter a cquired the former on 1 January 2012.

Between April and May 2013 the applicant was absent from work on six different occasions, which in total amounted to 15 days of absenteeism. Nine out of those fifteen days were duly justified on medical grounds due to “incapacitating migraine episodes” , one of them was due to a pharyngitis and the rest due to unspecified reasons.

On 12 June 2013 the applicant was dismissed “on objective grounds” ( extinción del contrato por causas objetivas ) in application of Article 52(d) of the Labour Regulations [1] , on the ground that in the last two months the applicant had had an absenteeism rate of 38,46% amounting to a yearly rate of 14,67%.

On 19 June 2013 the applicant introduced labour proceedings before the Barcelona Labour Court no. 33. The applicant requested a preliminary ruling from the Constitutional Court as regards the compatibility of Article 52(d) of the Labour Regulations with Article 15 of the Constitution [2] . On 17 September 2013 the Barcelona Labour Court no. 33 ruled in favour of the applicant, declaring the dismissal discriminatory and null. It specified that the applicant ’ s illness ( i.e. the chronic migraine) qualified as a disability and that Article 52(d) of the Labour Regulations was not applicable in the present case. As regards the applicant ’ s request for a preliminary ruling, the Barcelona Labour Court no. 33 expressed it doubts as to the constitutionality of the above-mentioned provision, declared that the request would be initially admissible, yet the applicant ’ s right to an effective remedy and to have a resolution on the merits in a reasonable time obliged the Labour Court to act as an interpreter of the Constitution and to issue a decision on the merits, as allowed by Article 5.3 of the Law on the Judiciary [3] .

The respondent company lodged an appeal with the Catalonia High Court of Justice. On 15 May 2014 the Catalonia High Court of Justice revoked the first instance ’ s judgment and ruled in favour of the appellant , on the ground that the applicant ’ s dismissal was not due her sickness, but to the “reiterated number of short-duration absences”. Additionally, the Catalonia High Court of Justice rejected the applicant ’ s request for a preliminary ruling from the Constitutional Court on the ground that the first instance court had already rejected the applicant ’ s request. The applicant then lodged a plea of nullity with the Catalonia High Court of Justice contesting the reasoning given by the second instance court as to the refusal of her request for a preliminary ruling. On 30 July 2014 the plea of nullity was rejected. The applicant lastly lodged an amparo appeal with the Constitutional Court invoking Articles 14, 15 and 24 of the Constitution. On 3 November 2015 the Constitutional Court declared the applicant ’ s amparo appeal inadmissible on the ground that no fundamental right had been violated.

QUESTIONS tO THE PARTIES

1. Does the Court ’ s case-law on the requirement for reasons for a refusal of a preliminary ruling to the Court of Justice of the European Union ( Vergauwen v. Belgium ( déc .), no 4832/04, §§ 89-90, 10 April 2012 with further references ) apply to requests for preliminary rulings from the Constitutional Court? Was the reasoning of the Catalonia High Court of Justice in refusing to grant the applicant ’ s request for a preliminary ruling from the Constitutional Court compatible with Article 6 § 1 of the Convention?

2. Was the applicant ’ s dismissal discriminatory contrary to Article 1 of Protocol No. 12 to the Convention?

[1] Article 52 (d) of the Labour Regulations provides that an employment contract will be terminated “on objective grounds” when an employee reaches an absenteeism rate (even when those absences are duly justified) of more than 20% over a pe riod of two consecutive months and the absenteeism rate during the previous 12-month period reach es at least 5% or 25% during 4 non-consecutive months . This provision also establishes some exceptions such as: when the absence is due to taking part in a strike, representing the workers, work-related accidents, sickness linked with pregnancy, maternity, holidays, a physical or psychological situation of victims of gender violence, cancer or to a serious illness, inter alia .

[2] Article 15 of the Spanish Constitution. concerns the ri ght to life and to physical and moral integrity .

[3] Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial .