The issue of voluntary leave has always led to a great deal of discussion. In fact, disputes due to voluntary leave are an everyday occurrence in many companies.
 

However, in this article we will focus on those related to the issue of prior notice to request the worker’s reinstatement and the possible consequences of not providing such prior notice.


How is voluntary leave regulated?
 

The reply to this question is very simple: By virtue of the verbatim text of Article 46 of the Spanish Labour Relations Act, specifically its sections 2 and 5.


The verbatim text of such provisions is as follows:
 

“2. A worker with at least one year’s seniority in a company is entitled to be granted the possibility of taking voluntary leave for a term no shorter than four months and no longer than five years. This right may only be exercised again by the same worker once four years have elapsed since the end of the previous voluntary leave period.
[…]
5. A worker on voluntary leave only maintains a preferential right to reinstatement for the vacancies that occur or will occur in the company of the same or similar category to the job he/she had”. 


Based on the verbatim text of these provisions, cases can be seen in which this kind of leave can be requested and the situation of the worker during its valid term; however nothing is mentioned about how the workers’ reinstatement must take place or how it functions.


So does prior notice need to be provided? How long must this notice be provided beforehand?


As we have already stated, the law does not include any regulation on the need to provide prior notice or the way this must take place. However, the Spanish courts have agreed to consider that workers must request this reinstatement before the end of their leave as a necessary requirement to effectively exercise their expected right.


Nevertheless, at no time do they stipulate what the term must be to request reinstatement, either from a legal or case law standpoint and this is where in many cases the collective bargaining comes into play. 


In this respect, different collective bargaining agreements determine a more complete or detailed regulation than the one in the Spanish Labour Relations Act and many specify a prior notice period for workers to request their reinstatement.
 

This article is focussed on determining what happens if such prior notice period is not observed.
 

What are the consequences of not observing the prior notice period stipulated in the collective bargaining agreement?


Although there are collective bargaining agreements that specify the consequences if the minimum stipulated prior notice period is not observed, i.e. forfeiting the right to preferential reinstatement, but there are others that do not and, after analysing both cases, the Supreme Court has reached the same conclusion: Under no circumstances can determining a prior notice period for requesting reinstatement result in failure to observe it leads to this right being forfeited and hence termination of the employment contract.


Examples of this are the recent judgements of the Supreme Court on 22-05-24 and 25-1-22.
 

This interpretation by the Spanish Supreme Court basically means it cannot be accepted that a bargaining agreement determines effects that the law has neither included or allows, which would imply diminishing the legally stipulated rights in the collective bargaining agreement to the detriment of the worker.


Nevertheless, in the same way, it should be recalled that the Supreme Court considered a specific term to submit the request for reinstatement could indeed be determined through collective bargaining along with the relevant consequences that can be included for not observing such term.


However, such effects must be proportional and must bear in mind the relevant circumstances related to exercising the right.


It must thus be taken into consideration that not all the provisions in collective bargaining agreements are valid and their use must be previously analysed in order to avoid committing acts that infringe the law, above all in cases in which they are used to justify a more severe penalty within a labour scope, in other words, dismissal.


Each case is unique and must be analysed independently; it is hence crucial to have a legal team that can provide advice to companies and help them in these kinds of processes.
 

Author: Guillermo Guevara, lawyer | Labour Law at RSM