Suspension and termination of the employment contract

Suspension and termination of the employment contract are closely related. However, they are not synonymous, although many people confuse the two terms. As lawyers specialising in employment law, we would like to talk to you about the difference between the two and the different cases that the legislation contemplates in each case.

Termination of the employment contract

Specifically, the termination of the employment contract means the definitive termination of the employment relationship between the employee and his or her employer. This may be caused by mutual agreement between the parties, by causes that have arisen and are considered valid within the contract itself, or by the resignation of the employee. Likewise, the law also contemplates it in the event that the employee retires, dies or becomes permanently, totally, absolutely or severely disabled.

However, it also provides for the possibility of termination due to force majeure, as a consequence of a justifiable collective dismissal for technical, organisational, economic or production reasons, for disciplinary reasons or because the employee is a victim of gender-based violence.

In order to be able to proceed with the termination of the employment contract, the employer is always obliged to inform the affected workers of the denunciation or prior notice that this is going to happen. Generally, the deadline for this is 15 days prior to the date on which the employment relationship is to be terminated. In addition, a proposal for the settlement of the amounts due must be attached.

For his part, the worker has the right to request that a legal representative of the workers active in the company at the time of the signing accompany him. The purpose of this is to give coverage and guarantees to the employee when signing or not signing the severance payment receipt. If the employee demands this circumstance, it must be specified in the document. If not, it should also be specified.

In the event that the employer obstructs or prevents the presence of a legal representative of the employee at the time of signing, the employee has the right to record this in the document in order to take any future legal action that he/she deems appropriate.

Suspension of the employment contract

If the termination of the employment contract results in the definitive termination of the employment relationship, the suspension of the employment contract results in a temporary termination of the employment relationship. This is the main difference, in legal terms, between the two concepts.

In general, the only case contemplated within the framework of suspensions of employment contracts is that of leaves of absence. In this regard, the law provides that they can occur for two reasons:

Enforced leave of absence of the worker

This is a particularly complex circumstance that is more difficult to determine when it comes to knowing whether or not an employee is entitled to it. Specifically, as stated in article 46 of the Workers' Statute, this is a specific period of time during which the employee asks the company to temporarily or indefinitely suspend his or her contract, but always reserving the right to return to his or her job when circumstances change.

However, the law does not determine that this formula is valid for all cases, but only and exclusively for those in which the worker is going to hold a public office, perform trade union functions within a representative organisation at state, regional or provincial level or fulfil a public duty that prevents him/her from going to work.

To give you an idea, this would be the case of a worker who stands for a political party in a municipal, regional or state election and is elected to the post of councillor or member of parliament, for example.

During the period of forced leave, the employee will not receive his or her salary or any extra pay from the company. Moreover, in the event of subsequent dismissal, those months or years will not be taken into account in calculating the severance pay, but will be added to the length of service in the company. The company will then proceed to cancel the employee's registration with the Social Security and will not pay contributions for him/her, although he/she will be in a situation assimilated to that of being discharged.

The employee's voluntary leave of absence

The Workers' Statute also provides for the right of any employee to request a period of leave. However, it establishes some conditions that are worth remembering. After all, it is a formula that entails a series of risks for the employee:

1. It is essential that the worker has one year's seniority in the company in order to be able to apply for it.

2. The duration of the leave of absence will be a minimum of four months and a maximum of five years.

3. This right may be exercised by the worker as many times as he/she wishes, but with nuances. In this regard, the Workers' Statute provides that, in order for an employee to take leave after having already taken leave, four years must elapse between the end of the previous leave and the beginning of the new leave.

4. The employer is not obliged to recognise the right to reserve the job. In fact, it only guarantees a preferential right of entry when a vacancy becomes available. This means that, once the period of leave is over, the employee's return to work may not be immediate.

As in the previous case, the company ceases to pay contributions for the employee, who remains in a situation assimilated to registration. However, it is possible that the time spent on leave does not count towards the employee's seniority within the company.

Leave of absence for family care

This is an exceptional situation and, therefore, has a separate regulation that we wanted to highlight in these lines. It is an intermediate situation between compulsory and voluntary leave.

In the event that the worker decides to request a leave of absence to care for a child, whether biological, adopted or fostered, he/she will be entitled to enjoy a leave of absence of up to three years from the date of birth of the child or from the administrative or judicial resolution by which it is granted. During this time, the conditions for returning to work will be similar to those established for cases of forced leave.

On the other hand, if the leave of absence is requested to care for a relative up to the second degree of consanguinity or affinity who has suffered an accident, an illness or who, simply because of age, cannot look after themselves and who is not in paid employment, they will be entitled to a two-year suspension of their employment contract under the same conditions as in the case of forced leave of absence.

We are sure that, after reading this article, you will be able to distinguish between termination and suspension of the employment contract, two related but very different concepts. We hope we have also helped you to understand your rights in one situation and in the other. If you have any questions, do not hesitate to contact us.