Odice Lawyers

Voluntary Leave 2022: doubts and disadvantages

ODICE LAWYERS

Have you ever thought about leaving your job on a temporary basis? If your answer is yes, then you should know that it is possible to do so: you can apply for voluntary leave of absence. However, this must be done within the limits established by law.

In this article, we will define the concept of "leave of absence", explain what types there are and focus on "voluntary leave" to inform you about the requirements for applying for it and discuss the possible advantages and disadvantages for the employee. 

Types of leave

When we talk about leave of absence, we are referring to the right of employees to suspend their employment contract temporarily. However, there are three types and subtypes of leave of absence.

  • Voluntary Leaves, classified into:
    • Parental leave
    • Family care leave
    • Parental leave
  • Forced Labour Leaveis granted in order to exercise trade union functions at provincial or higher level or, to be elected to a public office that is not compatible with the current employment contract.
  • Agreed Leaves of Absence (suspension by mutual agreement between the worker and the company under the agreed terms).

What is voluntary leave and what are the requirements for applying for it?

According to the Workers' Statute (art. 46.2): "An employee with at least one year's seniority in the company has the right to be granted the possibility of being placed on unpaid leave for a period of time". not less than four months and not more than five years. This right may only be exercised again by the same worker if four years have elapsed since the end of the previous voluntary leave. In the case of voluntary leave of absence to care for a child or family member, the maximum period shall be three and two years, respectively (art. 46.3 ET).

Therefore, the worker has the right to request a temporary suspension of his or her employment contract in order not to perform his or her work and, consequently, the company does not have to pay wages and contributions for the worker.

Similarly, in the case of voluntary leave for private interests, the employee may request it without justifying the cause, as long as it is not in breach of good faith, an agreement or a clause in the contract. Normally, it is usually related to family reasons and personal interests.

Requirements for applying for leave on personal grounds

The first thing to bear in mind before starting this procedure is that, although the Workers' Statute does not establish a notice period, it is advisable to notify the company sufficiently in advance (unless the applicable collective agreement establishes a specific notice period) and you must comply with the following requirements:

  • The employee must have at least one year's seniority in the company.
  • 4 years have elapsed since the end of a previous leave on personal grounds.if any.

The application is usually made in writing, and the document must state both the date on which the employee leaves the post and the date of return. Moreover, the employee may not leave his or her job until the granting of the leave is confirmed; however, if the leave is denied, the employee can sue the company in defence of his right - although he will have to continue to work until the legal proceedings are resolved.

Disadvantages of voluntary leave

  1. It does not guarantee incorporation:
    One of the main problems of voluntary leave is that reinstatement in the same job is not assured (with the exception of voluntary leave for child and family care during the first year), as the company has the right to hire another person to cover the work.

    If the company does not have any vacancies at the time the worker is due to join the company, the company must provide proof that there is no vacancy and the worker shall not be allowed to re-enterr but shall remain on leave indefinitely.

    Thereafter, the employee is entitled to take up any job that needs to be filled by the company. If the company fails to do so, the worker may take legal action to request reinstatement.
  2. You will not keep your job:
    In relation to the previous point, it is quite common that, at the time of reinstatement, the company does not have the job prior to the leave, as it is usually filled within a short period of time.
  3. Early return to the company: 
    The employee may not apply for reinstatement before the date granted in the leave of absence, nor may the company demand reinstatement until the end of the period of leave. However, if both parties are interested in early reinstatement, an agreement can be reached.
  4. You will not pay social security contributions.
  5. You will not accumulate seniority in the company.
  6. The employee is not entitled to an extension of the voluntary leave requested:
    However, in the case of leave on personal grounds, although this right may only be exercised again by the employee if four years have elapsed since the end of the last leave on personal grounds, an agreement may be reached between the employee and the employer to extend this leave. 
  7. I am on voluntary leave, can I apply for unemployment?
    The SEPE is very clear on this point and has created a article which explains when you are entitled to unemployment: if you apply for unemployment benefit while on leave on personal grounds, will be refused because you are not legally unemployed.

Can I work in another company during my voluntary leave?

Yes, during your leave you can work in another company and in case of termination of your contract for reasons beyond your control, you will be able to claim unemployment benefit and be eligible in the following cases:

  • If the period of unpaid leave has not yet ended when the legal situation of unemployment arises. In this case, if the duration of the benefit exceeds the duration of the leave, you will receive the benefit until the end of the leave, at which point the benefit will be suspended, as you must apply for reinstatement with the company and wait for their response. If the company declares that it is unable to accept their reinstatement for lack of a suitable vacancy, or refuses to accept a vacancy at that time but accepts reinstatement at a future date, he may continue to receive unemployment benefit until the date of reinstatement or until the benefit ends.
  • If the period of leave on unpaid leave has already expired if you apply for unemployment benefit or if there is no minimum period of leave of absence. In this case, you must first apply for reinstatement in the company. As long as the company does not reply, the application for unemployment benefit cannot be settled because you are not legally unemployed. If the company replies that you cannot be reinstated at that time, you will already be legally unemployed and your claim for unemployment benefit can be settled.

Now that you know in detail what is involved in applying for voluntary leave, are you still interested in starting the process? If so, from Ódice Abogados, law firm specialising in labour law, We can advise you and manage your leave of absence so that you don't have any problems, it will be our pleasure!

Share

Other Articles
Contact

Do you need legal advice and representation? At Ódice Abogados, a law firm in Malaga, we offer different means of communication so that you can contact us.