Refused your return from leave of absence: when it is a dismissal

The case, in five lines

What is brought

Dismissal action where the company denies the right to re-entry or treats the contract as terminated; declaratory action for the right to re-entry, with damages, through the ordinary procedure where it only pleads lack of vacancy. In leave to care for children or relatives, the refusal is a dismissal that the law protects with voidness.

Before which court

The Social Section of the Tribunal de Instancia (the first-instance court) where you worked or where the company is based, after compulsory conciliation before the public mediation, arbitration and conciliation body of your region (SMAC, CMAC or equivalent). The requirement in article 5 of Organic Law 1/2025, which belongs to the civil order, does not apply.

Deadline

Dismissal: twenty working days, a lapse period running from the day after the refusal, excluding Saturdays, Sundays and public holidays (articles 59.3 ET and 103 LRJS); the conciliation request suspends it, and the count resumes the day after the conciliation attempt or, if none is held, fifteen working days after filing (article 65.1 LRJS). Re-entry and damages: a one-year limitation period from when the action could be brought, in practice from when the vacancy you were not offered arose (article 59 ET).

Who can bring it

You, as the worker on leave who asked to return in time, against the company that granted the leave. If the business has changed hands, merged or the staff moved to another company in the group, the new employer is sued as well.

Financial risk

At first instance the worker is not ordered to pay costs, save for a penalty for bad faith or recklessness. The real risk lies elsewhere: if the dismissal action lapses, the contract may be treated as terminated, and with it the expectation of re-entry. And in ordinary voluntary leave, unfair dismissal compensation is calculated without the leave period, which the law does not count as length of service.

First things first: which leave of absence you were granted

Article 46 ET regulates several kinds of leave of absence, and each gives a different right to return. In ordinary voluntary leave, which requires one year's service and lasts between four months and five years, paragraph 5 leaves you only a preferential right to re-entry into vacancies of equal or similar category that exist or arise. No job is held for you, only an expectation that becomes a right when the vacancy appears. And that time does not add to your length of service: the statute counts it only for forced leave and care leave.

Leave to care for a child, up to three years, or for a relative who cannot look after themselves, up to two unless the collective agreement improves on it, does count as length of service and holds your own job for the first year, which stretches to fifteen or eighteen months for large families and to eighteen if you take it for the same length and on the same terms as the other parent. After that, the reservation continues, referring to a job in the same professional group or an equivalent category. Forced leave, for public office, keeps the job if you ask to return within the month after leaving office.

That is why the first thing we read is not the refusal but the document that granted the leave and your request. Paragraph 6 allows collectively agreed forms of leave with their own rules, and some companies grant in writing a voluntary leave with the job held open: that agreement is binding and changes the action. If you asked for it to care for a young child and the company recorded it as ordinary voluntary leave, there is room to argue about the classification, and the difference is the one between an expectation and a job held for you.

The exact wording of the refusal decides whether there is a dismissal

The Tribunal Supremo (the Spanish Supreme Court) has consistently held that not every refusal to take back a worker on voluntary leave is a dismissal. If the company merely says there is currently no vacancy in your category, nothing is terminated: your request stays alive until there is one, and you do not have to challenge that answer. If it denies the very right to return, or treats the relationship as broken, it is taking a decision that ends the contract, and that is a dismissal even though nobody handed you a letter using that word.

The phrases that turn the answer into a dismissal are recognisable: “your relationship with the company has ended”, “you lost the right by not giving notice”, “you left voluntarily”. By contrast, “there is no vacancy at the moment, we will let you know” is the typical wording of lack of vacancy. Silence is not a dismissal in itself, but it cannot be left alone: we demand an express answer by burofax (a certified letter with proof of content) within a short period and analyse it with the calendar in hand.

The hard cases are mixed answers, such as one pleading lack of vacancy and at the same time a defect in your request. There the risk is not symmetrical. If you sue for dismissal and the court sees only a lack of vacancy, you lose that claim, but your expectation remains intact. If you wait and it was a dismissal, the twenty working days will be gone, and there are cases in which, once the dismissal action had lapsed, the courts treated the contract as terminated and then refused re-entry. Since labour procedure law does not allow the dismissal action to be joined with others, the order in which they are brought is strategy.

The notice period in the collective agreement does not cost you the right

Article 46.2 ET sets no deadline for asking to return from ordinary voluntary leave, but the request must arrive before the leave ends. Anyone who lets the date pass without asking hands the company its best argument that they abandoned the job, and then there is no refusal to challenge. For forced leave, paragraph 1 is categorical: re-entry must be requested within the month following the end of the public office.

Many collective agreements also require a month's notice or more before returning, and companies use this to refuse. In May 2024 the Social Chamber of the Tribunal Supremo unified doctrine in a case of exactly that kind: the worker asked to return twenty days before the end and his agreement required a month. The Court reasoned that the Workers' Statute neither provides for loss of the right on that ground nor refers to the collective agreement to impose it, that the effect must be proportionate, at most a grace period for the company, and it declared the dismissal unfair.

The lesson has two sides. If the company refuses your return because you gave notice late, it is denying your right: that is a dismissal, with its twenty working days. And if you are still in time, ask to return with room to spare, by burofax with certified content, stating the return date and your category and asking to be informed of existing and future vacancies. An email or a phone call can be disputed; a burofax cannot.

What counts as a vacancy and how it is proved

Article 46.5 ET refers to vacancies that exist or arise: those there when you asked to return and those that come up later. The Tribunal Supremo has made clear that this is not the vacancy the company wishes to fill, but whichever one arises for any reason, be it retirement, resignation or dismissal, provided only that it is of equal or similar category and was not lawfully abolished before your right arose. And hiding it does not harm the worker on leave, because obscurity cannot benefit the party that creates it.

Not every hire is a vacancy: someone replacing a colleague whose job is held open is not filling a free post. But a stable need covered with successive temporary contracts, the conversion to permanent status of temporary staff in your category, or an internal promotion that leaves a gap can be vacancies, and the company usually presents them as something else. Category is compared against the professional classification of your collective agreement and the actual duties, not against the title of the job advertisement.

The burden of proving the vacancy lies, in principle, with you, but the company holds the data. In the claim we ask it to produce the contracts and hires in your category since your request and the nominal list of workers for those months; if it fails to bring them without good reason, the court may take our allegations as true. Before that, we secure what disappears: the job advertisements, with date and web address, and the evidence of the workers' legal representatives, who receive the basic copy of every contract.

If the leave was for caring, the refusal is a void dismissal

In leave under article 46.3 ET there is no need to look for vacancies: there is a job held for you, your own in the first year and one in the same professional group or an equivalent category afterwards. Refusing your return, or telling you there is no room, is denying that reservation and therefore dismissing you. Here lack of vacancy is worthless as an argument, and accepting it as if this were ordinary voluntary leave is the mistake that has lost the most winnable cases.

Article 55.5.b) ET declares void the dismissal of workers who have requested or are taking the leave in article 46.3, and paragraph 6 sets the effect: immediate reinstatement with payment of the wages lost. The company's only way out is to show that the dismissal is fair on grounds unrelated to the leave, and a refusal to take you back with no letter, no facts and no cause will hardly achieve that.

After the first year, the company may offer you another job, always in the same professional group or an equivalent category. If it offers one in a lower group, on different terms or with a change incompatible with the care that led to the leave, do not accept or reject it orally: answer in writing, reserving your rights. If the refusal also hides discrimination, the claim can seek compensation for the breach of the fundamental right, which our guide on void dismissal for retaliation explains in detail.

What each route achieves, and unemployment benefit meanwhile

If the dismissal action succeeds and the dismissal is declared unfair, the company chooses between reinstating you or paying the statutory compensation. In ordinary voluntary leave the time away does not add to your length of service, and the base salary must be argued, because on the date of the refusal you were earning nothing: we argue for the one you would have been paid on returning under your collective agreement. If the dismissal is void there is no choice: reinstatement and the wages lost since the refusal.

The re-entry action seeks a declaration of your right to fill the vacancy and an order that the company compensate you for not offering it. Courts usually measure that harm by the wages lost from when the vacancy should have been yours until you actually return, and if the company has been filling posts while you waited, the amounts are significant. The period is one year from when the action could be brought (article 59 ET), and in practice each vacancy filled by someone else starts its own clock.

Unemployment benefit also depends on the classification. The Tribunal Supremo has treated as dismissed the worker on leave whose refused return is acknowledged as an unjustified dismissal, for example at conciliation; with a mere lack of vacancy, the benefit is much more open to dispute. That is why conciliation is not a formality: an agreement acknowledging the dismissal resolves the case and eases access to the benefit, and a re-entry agreement with the date and category in writing avoids a second lawsuit.

How we run the case, step by step

1. 1

   Reading the leave you were granted

   We review your request, the document by which the company granted it and the collective agreement to find out whether you have an expectation of a vacancy, a job held for you or an agreed leave with its own rules. The action follows from that reading.

2. 2

   Requesting re-entry in writing, or demanding an answer

   If you are still in time, we send the burofax with certified content before the leave ends. If you already asked and got only a phone call or silence, we demand an express answer and notice of existing and future vacancies.

3. 3

   Classifying the answer and fixing day zero

   If the answer denies your right, treats the contract as terminated or mixes arguments, we treat it as a dismissal and count twenty working days from the next day, excluding Saturdays, Sundays and holidays. If it only pleads lack of vacancy, we start monitoring vacancies.

4. 4

   Filing the conciliation request

   We file it before the public mediation, arbitration and conciliation body of your region: it is the prior requirement in article 63 LRJS and the act that suspends the lapse period. In the social order, the prior attempt at an appropriate dispute resolution method under article 5 of Organic Law 1/2025, which belongs to the civil order, does not apply.

5. 5

   Securing the evidence of vacancies

   We capture the published advertisements with their date, speak to the workers' legal representatives and to colleagues who know who came in, and prepare the request for documents the company will have to produce at the hearing.

6. 6

   Suing, going to trial and monitoring

   We sue before the Social Section of the Tribunal de Instancia (the first-instance court) by the chosen route. If the judgment goes against you, we assess an appeal (recurso de suplicación) to the Social Chamber of the Tribunal Superior de Justicia (the regional high court); if we stay on the re-entry route, we track every new vacancy and its one-year period.

The law that applies

• Art. 46 ET. It regulates leaves of absence. In ordinary voluntary leave (one year's service, four months to five years) the worker keeps only a preferential right to re-entry into vacancies of equal or similar category that exist or arise. Leave to care for children or relatives counts as length of service and holds the job open for the first year, extended for large families, and afterwards a job in the same group or an equivalent category. Forced leave keeps the job if re-entry is requested within the month after leaving office. BOE-A-2015-11430
• Art. 55 ET. It declares void the dismissal of those who have requested or are taking the leave in article 46.3, unless it is found fair on grounds unrelated to it, and sets as the effect of voidness immediate reinstatement with payment of the wages lost. BOE-A-2015-11430
• Art. 59 ET. Actions arising from the contract with no special period are time-barred after one year, counted for money claims or one-off obligations from when they could be brought. The action against dismissal lapses twenty working days after the dismissal, and the conciliation request before the competent public body stops the clock: the article says “interrupted”, but article 65.1 LRJS makes clear that the lapse period is suspended and the count resumes where it stopped, without starting again. BOE-A-2015-11430
• Art. 63 LRJS. It requires, as a prerequisite to the proceedings, an attempt at conciliation or, where applicable, mediation before the relevant administrative service or the body that takes on those functions under an inter-professional or collective agreement. BOE-A-2011-15936
• Art. 103 LRJS. The worker may challenge the dismissal within the following twenty working days, a lapse period for all purposes that excludes Saturdays, Sundays and holidays at the court's seat. If the claim was brought against someone wrongly taken to be the employer, time does not run until it is established who the employer is. BOE-A-2011-15936

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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