Excedencia: How to request unpaid leave in Spain

Excedencia, as it's called in Spanish, is a voluntary leave of absence from work and a suspension of your employment contract as requested by you. It's similar to a sabbatical in many countries but is unpaid. 

It can be for a period of time that lasts at least four months and up to a maximum of five years.

The right to request this type of leave is covered under Article 46 of the Workers' Statute. 

Be aware, this is different from the type of leave you may request to care for a dependent relative or a child under the age of three. This comes under a different part of the Spanish labour law.  

For the purposes of this article, we will specifically look at unpaid voluntary leave, which could be for a number of different reasons, but not because someone who is dependent on you needs to be looked after. 

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Under what circumstances can I request a leave of absence?  

• You need to have at least one year of seniority in your company.
• There is no requirement as to the type of contract you must have. 
• If you have already requested a voluntary leave of absence, you will have to wait for at least four years to be able to request it again. If you have requested a leave of absence to care for a child or a relative, it is not necessary to wait for the four years to pass as mentioned above this is a different type of leave.

Remember, your company is under no obligation to grant it to you.  

What will it mean practically?   

• If you request this type of leave and it’s granted, your employer doesn’t have to pay your salary or your social security contributions. This could mean that you’re not covered for certain benefits or public health care during this time. 
• The time that you remain on voluntary leave is not taken into account for seniority purposes (job promotions) or any hypothetical severance pay.
  
  
• You maintain the right to get reinstated back into your company when your leave ends, but your company is under no obligation to reserve your specific job for you.  

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Why is my specific job not guaranteed? 

As mentioned in the previous point, your company is under no obligation to give you back the specific role and job title you had before you left. Therefore, the employer can easily hire someone else to replace your position as soon as you leave. 

You do, however, have the right to some type of role of the same or similar seniority level when your company has a vacancy, and at the end of your period of leave, if you request that you want to be reinstated.

This right never expires, therefore, once you request reinstatement and there is no position available at that time, the right will remain in force indefinitely until the company can find you a position.

Your company must always report the existence of a vacancy, however, it’s advisable that you keep in touch with the HR team regularly to keep on top of the situation.  

In the event that there is a suitable vacancy and your company doesn’t notify you or refuses to give it to you, compensation for damages can be claimed for the amount of the salary not received, if you take your company to court. This was recognised by a Supreme Court ruling on November 11th, 2020.  

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How do I request a leave of absence?  

The Workers' Statute does not require a specific procedure or form. This means that there are various ways to go about it. The best way is to ask your company or your boss in writing, indicating the start date, end date and duration of the leave.

It’s advisable to give your company at least 15 days in order to respond, so you want to make sure you ask for it well in advance.

Remember, your company doesn’t have to grant it to you. If you take the leave without it being granted, it will be considered as job abandonment and your employment relationship may be terminated.

Can I work for another company while on leave?

Yes, you can work for another company. The only exception is that there is no unfair competition or that it doesn't violate the contract of good faith between you and your employer.  

This means you cannot work for a rival company and steal the same customers or use the same contacts as you did in your previous position. In the event that there is unfair competition, you may be dismissed and your company doesn’t have to offer you a position at the end of your leave.  

Can I collect unemployment benefits while on leave?

No, you cannot claim unemployment benefits because this leave unpaid leave was taken voluntarily.

If your company refuses to give you a job upon your return because there is no vacancy, you will still not be entitled to receive any unemployment benefits.  

However, if this refusal is because the company doesn’t recongise your right to have a position upon your return, you may be able to get compensation if it’s taken to court.  

But if you find another job during your leave and it ends for a reason other than voluntary leave or because of a trial period, you can apply for unemployment. This benefit will also take into account the time you have worked in the company where you are on leave. There is no minimum time in which you have to be hired to be able to collect unemployment.  

Can I get an extension?  

You do not have the right to an extension of your leave unless you agreed on it beforehand. Remember, the maximum amount of time is five years, but it will depend on the amount of time you requested with your company in the first place.

If it's under five years and you still want an extension, your best option is to contact your company during your leave to see if they will be open to it. They may refuse though and only be open to the original period of leave they granted you.