A prolonged absence from work may be regarded as voluntary leave

Is a letter of resignation required to leave your company, or is it sufficient simply not to turn up for work? This is the question addressed by the High Court of Justice (TSJ) of Madrid in a recent ruling, in which it examines a prolonged absence and classifies it as voluntary resignation rather than unfair dismissal. In this article, as lawyers specialising in labour law, we analyse this case and examine its implications, how voluntary resignation is processed, and what the consequences are.

Resignation by the employee as a ground for termination of the employment contract

Article 49 of the Workers’ Statute (ET) sets out a number of grounds for termination of the employment contract, including resignation by the employee due to breaches by the employer. In such cases, the employee must give notice within the period specified in collective agreements or in accordance with local custom.

The ET considers the following to be just causes for an employee’s resignation:

• Substantial changes to working conditions.
• Non-payment or persistent delays in the payment of wages.
• Any other serious breach of the employer’s obligations.

In all these cases, as provided for in the Workers’ Statute, the employee is entitled to the compensation set out for unfair dismissal.

However, an employee may also resign voluntarily without any prior breach by the employer, should they wish to change jobs or simply resign for personal reasons. In such cases, although the law does not expressly regulate the notice period, it is usually set at 15 days by collective agreements. When the employment relationship ends in this way, the employee receives their final settlement; if they have not observed the notice period, the days of the notice period not worked will be deducted.

The key difference in this latter case of voluntary resignation is that the employee is not entitled to severance pay or unemployment benefit, as to be eligible for such benefits, the person must be willing and able to work but currently unemployed.

What should a letter of resignation include when there has been no breach of contract on the part of the employer?

There are no specific regulations governing the content, but it is important to include the following elements:

• It should be in writing and sent in such a way that there is proof of both dispatch and receipt.
• The reason for resignation may be specified.
• It should also include the effective date of resignation, the date of notification and the employee’s signature.

What rights does an employee have when they resign voluntarily?

The employee is entitled to receive a final settlement, which will include:

• The pro-rata portion of their salary corresponding to the days worked in the month of resignation.
• Any overtime worked and still outstanding.
• The pro-rata portion of any unpaid bonus payments.
• Accrued but unused holiday entitlement.
• Per diems and other allowances included in the employee’s payslip.

When you are given your final settlement, check it carefully to ensure it is correct before signing it.

What does the Madrid High Court of Justice now say regarding the consequences of an employee’s prolonged absence?

The Labour Chamber of the Madrid High Court of Justice has examined the following case:

An employee took sick leave on several occasions during 2024. The first time was in January 2024 due to pneumonia, and she remained on sick leave until 15 February.

The employee returned to work on 16 February, but did not return on 17 and 18 February. She was on holiday between 19 and 25 February and did not return to work upon the holiday’s conclusion. The employee did not provide any justification for her absences, and on 6 March 2024 the company sent her a registered email requesting an explanation for her absences.

The employee did not reply to the email nor did she return to work. The company then sent her several letters: one warning her that her absences could be interpreted as voluntary resignation, and another notifying her of her dismissal on disciplinary grounds, pursuant to Article 54.1(a), which establishes repeated and unjustified absences or tardiness as grounds for disciplinary dismissal. The employee went to the workplace to seek an explanation from the manager and was told that she should resolve the matter through lawyers. Finally, the company processed the case as a voluntary resignation.

The employee lodged a complaint, arguing that disciplinary dismissal should have been applied rather than voluntary resignation or resignation. The matter was examined by the High Court of Justice of Madrid, which noted in its judgment that resignation from a job may be express or implied through actions that unequivocally indicate the employee’s intention to leave the job. In this case, it was considered that the employee’s conduct demonstrated a clear intention to terminate the employment relationship, and the court dismissed the employee’s appeal, declaring the employment relationship terminated due to the employee’s voluntary resignation.

Therefore, voluntary resignation from a job may be express, when a letter of resignation is sent to the company with the content we have seen above, or implied, if the employee takes actions that clearly demonstrate their intention not to continue in their post. The consequence is, as we have seen, that in the case of voluntary resignation, as in the case analysed by the court, no compensation or unemployment benefit is payable; however, if it were deemed unfair dismissal, such payments would be due.

As you have seen, you must be careful with absences from work and ensure they are justified, as if they are prolonged and repeated over time, they may be considered either grounds for disciplinary dismissal or voluntary resignation. If you find yourself in one of these situations and need help, contact our team of expert labour lawyers so they can analyse your case.