Compulsory leave of absence

Forced leave is a form of leave of absence in which the worker requests that their practices be suspended, which reserves them the right to return to their job position later. This takes place when the worker is to engage him or herself in:

  • Exercise of public office: that temporary or political office that is accessed by choice or designation
  • Exercise of trade/labor unions: only those of provincial or higher level. However, the Law limits the right to forced leave to those trade/union organizations that are more representative
  • Fulfillment of a public duty: The leave is to cause the individual to make 20% less during the workday for a period of 3 months.

The forced leave of absence is characterized as a cause of material incompatibility with the job or as an impossibility of execution of the job before the obligation of the inexcusable duty of public nature. It is, then, that the temporary cessation of the employment relationship becomes mandatory for the worker.

Rights of the worker in a situation of forced leave in Spain

The worker who finds him or herself in a situation of forced leave will have the right to reserve their job, regardless of the length of time that the leave lasts. During this period, seniority will be considered highly. However, it will not be considered for the calculation of the severance pay amount.

Calculation of the severance pay during the forced dismissal and advantages for the company

According to the jurisprudential doctrine applicable in Spain, the right to the calculation of seniority as it corresponds to forced leave is one thing, but the time worked in the company, according to art. 56.1) of the Workers’ Statute (Estatuto de los Trabajadores), is another. This means that the concepts of seniority in the profession and the time spent at the company are not comparable with each other.

The first reflects the duration of time spent in the profession itself while the second refers to the time spent working for a particular company.

This last concept is what is used to determine the severance pay as it corresponds to the worker whose dismissal was declared inadmissible. The Workers’ Statute then utilizes, as a point of reference for the calculation of severance pay, only the time of given services- excluding seniority.

Consequences for the worker for uncomplying with the deadline of return

Within a maximum period of thirty calendar days after the cessation of the public or trade union office, the worker must be reinstated the day he wants to work.

In the case that the worker is not reinstated to their position within the established period, the company can consider that they have abandoned their position, and the procedures of voluntary departure will apply. In this way, the worker will not have the right to compensation or to collect unemployment.

Regarding the above, it is highly important to know for exactly how long workers would have been on forced leave in Spain. This would imply a huge point of saving in terms of compensations.

This article is not considered as legal advice

Beatriz Román Bas

Mariscal Abogados

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