Notice is a legal and conventional obligation that regulates the termination of the employment relationship when it is the employee who decides to resign or not to renew a contract. Failure to comply with this obligation may lead to financial penalties, including discounts on the severance payment and, in some cases, legal claims.
Non-compliance may lead to financial penalties, including discounts on the severance pay and, in some cases, legal claims. The notice period for voluntary severance is the one established in the collective labor agreement or failing that, the one agreed with the employee.
Failure to comply with the notice period may result in financial loss for the employee, especially if the collective bargaining agreement establishes penalties of more than one day’s salary for each day of non-compliance with the notice period.
Notice periods for voluntary severance
When an employee decides to terminate his or her employment relationship, the notice period indicated in the collective bargaining agreement must be observed. If there is no specific regulation, the local custom applies, with a 15-day notice period being recommended.
- Collective bargaining agreements: They may set periods longer than 15 days, even up to two months.
- Individual contract: If the contract establishes a notice period and there is no regulation in the collective labor agreement, the local custom will apply.
- Lack of notice: The company may deduct from the severance payment the days remaining to complete the mandatory period, in accordance with the provisions of the collective labor agreement.
For example, some agreements establish a two-day penalty for each day without notice.
Lack of signed contract
If the employee has not signed a contract, he/she is still obliged to give notice, since the employment relationship is presumed to exist.
Trial period
No notice is required during the trial period. However, for it to be valid, it must be in writing in the contract and comply with the maximum term allowed by the agreement.
IT leave
If the employee is on medical leave, notice is still required.
- Once the voluntary sick leave is effective, the worker must request direct payment from the Social Security or the mutual insurance company.
- The economic benefit may be less than that received during the employment relationship.
- Upon medical discharge, the employee will not be entitled to unemployment benefits.
The company cannot prevent voluntary sick leave, even if the worker is on medical leave.
Compensation and penalties
Can the company claim damages?
No, unless there is a signed permanence agreement. If no compensation is fixed in the agreement, it will be the judge who will determine the amount.
Can the worker retract his voluntary leave?
Yes, if he/she communicates it during the notice period and the company has not hired another person for his/her position. Otherwise, the company’s refusal could be considered unfair dismissal.
Workers' Rights
Compensation
- Voluntary resignation does not entitle the employee to severance pay.
- There is no right to unemployment benefits.
Severance payment
The employee is entitled to receive a severance payment that includes:
- Salary pending for days worked.
- Vacations not enjoyed.
- Extraordinary payments if they are not prorated.
- Other concepts owed (per diems, bonuses, etc.).
If there are no payments pending, the severance payment could be zero euros.
Fraud in the termination of the contract
Some workers try to agree with the company on a disciplinary dismissal to access unemployment benefits. This constitutes Social Security fraud and can have serious consequences:
- For the company: Financial penalties and possible limitations on future subsidized hiring.
- For the worker: Loss of benefits and reimbursement of the amounts unduly received.
Any fraudulent practice must be avoided, and it must be ensured that the voluntary leave is carried out in accordance with the regulations.
Proper management of voluntary severance is essential to avoid conflicts with the company and economic damages for the employee. Complying with the notice and carrying out the procedures correctly allows a smooth exit from the labor market.
For further information, please contact Labor consulting
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