Voluntary Leave: Article 46(2) of the Workers' Statute

An employee who has worked at a company for at least one year and who has not been on voluntary leave for at least four years, is entitled to

• be granted the possibility of being placed on voluntary leave (excedencia voluntaria):
  • for a period no shorter than four months
  • for a period no longer than five years.

The voluntary leave of absence provided for in the Workers' Statute shall entitle the worker to retain only a preferential right to reinstatement in vacancies of the same or a similar category to his or her own that exist or arise in the company.

Written by Josep Conesa

Employment and bankruptcy lawyer

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Preferential Right when on voluntary leave

Within this provision, it is worth highlighting the emphasis placed by the legislator on specifying that voluntary leave "only" retains a "preferential" right to reinstatement in vacancies that may exist in the company which are of the same or similar category to his or her own.

It follows that it has not come to recognise an automatic and unconditional right to reinstatement, nor even a right without any other qualification, but a right to which it expressly assigns the adjective "preferential", to mean that it is simply a matter of recognising a preference, primacy or advantage over another person, when it comes to filling any vacancy of the same or similar category that may exist in the company.

This means that, once the worker applies for reinstatement, the company must inform the worker of any new recruitment or vacancy for posts of the same or a similar category.

In other words,

1. The company does not have to reserve the same job.
2. The employee must communicate his/her intention to return to the company before the end of the leave of absence.
3. The company only has to inform the employee of the existence of the same or a similar vacancy.
4. The company can and must inform them if there are posts of the same or a similar category but with a lower salary, i.e. the employee does not have the right to demand a position with equal pay.
5. The time spent on leave does not count as time served in the company.

Non-compliance with the worker's preferential right to reinstatement

The ruling of STS 12/02/2015, specifies that once the worker on leave has made the request for reinstatement, the company may not proceed to fill posts of the same or a similar category:

• Not only by hiring people who had not been linked to the company until then,
• But also by converting fixed-term and part-time contracts into permanent and full-time contracts.  The conversion of temporary and part-time employment may not conflict with the preferential right of the redundant worker, because it is clear that there is a need for a permanent workforce and the characteristics of the worker. Consequently, it cannot be accepted that temporary and/or part-time workers have a preferential right as compared to that of the worker in question.

In the event of non-compliance with the obligation to reinstate the worker, that worker will have the right to claim unfair dismissal on the grounds that it is the company that has terminated the contract.

Closure of companies subject to outstanding entitlements resulting from voluntary leave

The workers on leave would not be entitled to compensation if the company closed the workplace, according to the Supreme Court ruling of 25 October 2000 (rcud 3606/1998, Sala General).  This ruling rejected the claim for compensation for collective dismissal due to the closure of the workplace of the plaintiff workers, who had taken voluntary leave of absence on their own free will, carrying out other professional activities in such a situation.  The Court argued, in essence, that "the loss of a job that is being performed and which ordinarily constitutes the worker's livelihood is not the same as the loss of the expectant right to occupy a vacancy in the company in which services were provided, and which the worker left, typically in order to carry out another job or another professional activity".

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Frequently Asked Questions about Voluntary Leave

Case law concerning voluntary leave of absence:

• Sentencia TS Reincorporación a tiempo parcial indicando la no conformidad a la novación