There are number of points which an employee must decide upon when requesting a voluntary leave of absence; the duration of such arrangement is one of them. Once a leave of absence of a fixed term has been requested, is the company under the obligation to agree to its extension at the employee’s request? We analyze this question in the light of case law.

Voluntary leaves of absence are regulated (notwithstanding more favorable provisions established in collective labor agreements) in article 46 of the Workers’ Statute. Such article provides that workers who have been with the company for at least one year may take voluntary leave of absence of no less than four months and no more than five years. It goes on to stipulate that this right may only be exercised again by the same worker when at least four years have elapsed since the end of the previous leave of absence. These voluntary leaves of absence afford workers a preferential right to reinstatement to positions of the same or a similar category to that which they held when the leave was first taken.

One question arising in relation to the above concerns situations in which the employee has requested a voluntary leave of absence which falls short of the maximum duration provided for by law (five years) or by the relevant collective labor agreement. The specific issue would be whether, where the duration of the leave requested falls short of the legal maximum, the employee may request one or more extensions to it and whether, moreover, the company is under the obligation to agree to such extensions, at least up to the point at which the total period of leave taken reaches the maximum term applicable in each case.

It should be borne in mind in this respect that the provisions of the Workers’ Statute make no reference to the possibility, or otherwise, of such extensions being requested. It therefore makes no reference, either, to the question of whether or not the company is under the obligation to accept them. To know how we should act in such situations and what the implications of this type of request might be, we must therefore consider the conclusions reached by jurists and in case law.

In view of the aforementioned absence of legal provisions, this issue has been analyzed and debated on many occasions by the courts. The conclusion reached has been that, unless there is an express legal or collective labor agreement provision to the contrary, the unilateral imposition by the employee of an extension of the leave of absence is, as a general rule, not acceptable, even in cases in which the leave was initially requested for a period of time shorter than the maximum provided for by law.

Many rulings have been handed down in this regard. However, it is worth referring expressly, due to its clarity, to the ruling of the Labor Chamber of the Spanish Supreme Court of June 20, 2011 which, in turn, cites a previous ruling of the same Chamber dated December 11, 2003, concluding that the company is not under the obligation to accept an extension proposed by the worker. The reasoning is that acceptance of the possibility of a worker on leave requesting an extension to an arrangement already formalized is tantamount to accepting the possibility of the worker taking a new leave of absence, even if it appears, from a formal perspective, to be a continuation of the first one. This criterion has been reiterated and applied in many other later judgments, including that of the High Court of Justice of Madrid of December 21, 2017. Applying this principle to a specific case, this judgment concluded that the company was entitled to refuse the extension requested by an employee as such refusal would be compliant with the legal rule that, for a new leave of absence to be granted, at least four years must have elapsed since the end of the previous one. This requirement would not be met in the case of an extension since the previous leave of absence would still be in force at the time of requesting it.

In short, according to jurists, in the absence of legal provisions applicable to situations in which the extension of a voluntary leave of absence is requested, the company cannot be forced to agree to such an extension, since the request is to be regarded to all intents and purposes as a request for a new leave of absence; this means that the company can refuse to grant the extension on the grounds that the time elapsed since the end of the previous leave of absence does not amount to at least four years.

In addition to the above, the case law of the Spanish Supreme Court, as reflected in the judgments referred to above, affirms that the fact of an employee having been granted extensions of a leave of absence in the past does not mean that he/she has generated any entitlement to further extensions in the future, as the granting of an extension is merely an act of liberality on the part of the employer; it is not a “more favorable condition” and neither does it imply a pact between the company and the employee that may be effective or binding upon the parties in the future.

Therefore, although the circumstances of each particular case must be analyzed, the principle established by jurists and in case law is that in the absence of a legal or collective labor agreement provision to the contrary, a company is under no obligation to agree to requests for the extension of leaves of absence made unilaterally by its employees.


Daniel Díez Monge

Garrigues Labor and Employment Law Department