Voluntary leave. Requirements, application and reinstatement

There are times in life when an employee may want to temporarily terminate their employment relationship with their employer. The purpose? To have more time to take care of the family or to live an experience abroad, for example.

For these cases, the Workers' Statute contemplates the figure of voluntary leave. But what exactly is it and how do you apply for it? In this article we will answer both questions and many others that are of great interest.

What is leave on personal grounds? What the Workers' Statute says

Voluntary leave of absence from work is a right that employees have. Specifically, it is regulated in article 46.2 of the Workers' Statute.

Specifically, this article states that all workers who have at least one year's seniority in the company to which they belong may request voluntary leave of absence for a period of between four months and five years. Furthermore, it states that this right may not be exercised again until four years have elapsed since the end of the previous leave.

However, this article of the Workers' Statute only draws general lines. In most cases, it is the collective agreements that develop more precisely the guidelines for the exercise of this right. There is even room for individual negotiation with the company.

Requirements for requesting leave of absence

Article 46.2 of the Workers' Statute states that there are two essential requirements for requesting a leave of absence:

• As a minimum, the worker must have at least 12 months' seniority within the company that has employed him/her.
• In the event of having requested a leave of absence in the past, at least four years must have elapsed since the end of the leave.

Reinstatement after voluntary leave of absence

Even if the requirements are met, employees should be aware that voluntary leave of absence from work does not guarantee reinstatement. In this respect, current legislation only provides for a right of first refusal.

What does this mean? Quite simply. At the end of the leave, the employee must inform his or her employer of his or her intention to return to his or her job. However, the company will only reinstate you if there is a vacancy in that position or in a position of equal rank. Otherwise, you will have to wait for a vacancy to arise. However, you will have priority over external candidates and those who complete their leave of absence afterwards.

In case of refusal of reinstatement (e.g. because another job has been found during the waiting period), the employee loses the right of first refusal. The employee may also choose to return to a lower-graded job with a lower salary. However, in this case, he/she may refuse the offer without any consequences.

How to take leave from work

We now know when it is possible to apply for leave, so it is time to describe in detail how the application process works.

Specifically, the application for leave of absence must be submitted to the employer through the human resources department (if there is one) in writing. Generally, you should do so at least 15 days before the date on which you want the temporary suspension of your contract to take effect, although this figure may vary depending on the provisions of your collective agreement.

But what information does the application for leave on personal grounds have to contain? They are the following:

• Name and surname of the worker.
• Date on which the application is made.
• Date on which the employee wishes the period of leave to begin.
• Date on which the employee wishes the period of leave to end.
• Signature of the employee and space for the employer's signature or for the employer's stamp.

At this point, it should be noted that it is not compulsory to state a reason for the period of leave. However, it may be helpful in certain cases.

Can the employer refuse to grant leave?

Yes, it can. But in order to do so, it must justify its decision. In the event of a refusal, the employee can go to the labour court and file a lawsuit. In that case, if no agreement is reached during conciliation, a judge will decide whether the leave of absence is appropriate. In no case can you start to take leave until a final judgement has been handed down.

During the whole period that it takes for the final judgement to be published, the employee will continue to work for the company in the same way as before. This is very important, because if he does not do so, the employer could dismiss him for abandoning his job. Moreover, he could even ask you to pay damages.

This is why, in many cases, a refusal to grant leave on personal grounds results in a request for voluntary redundancy, which the employer cannot refuse. However, this action implies the definitive suspension of the employment relationship between the two parties.

Can the employee give up the leave of absence?

Yes, he/she can do so before the date on which he/she informed that he/she would start and which was accepted by the employer. The only condition is that the change in his decision does not imply a prejudice to him or to third parties, as would be the case if, for example, the business has hired another person to replace him during that period.

Is it possible to receive unemployment benefits during the period of leave?

No, it is not possible. This is mainly due to the fact that a leave of absence is a decision by the employee that can be equated to a request for voluntary redundancy. Therefore, even if you meet the requirements related to the length of service, you will not be able to receive unemployment benefit or any other related benefit.

It is a different matter if, after requesting to return to work once the voluntary leave of absence has ended, the company refuses to do so or simply does not respond to the employee's request. In this case, the courts may consider that there has been an implicit dismissal, after which there will be the possibility of applying for unemployment and even compensation.

How do I apply for reinstatement at the end of my leave of absence?

Although in the letter requesting leave of absence the employee should have indicated the end date, the law requires the employee to inform the company of his or her intention to return to his or her job. In order to do so, he must give at least one month's notice before that date. If you fail to do so, you will lose your right to return to work and the leave will be considered as permanent voluntary leave.

This is all you need to know about unpaid leave. It is undoubtedly an employment right that you can exercise if you feel it is appropriate, but it requires careful thought beforehand. After all, it can have clear consequences for your professional future. Our employment lawyers will be able to advise you on the matter if you need it and help you in any labour conflict that may arise from its exercise.