Leaving a job by choice It is a right of the worker included in the Workers Statutebut it’s not enough to say “I’m leaving.” Spanish labor legislation establishes a series of steps to formalize the decision to quit the job that should be complied with to avoid later problems, from discounts in the settlement to unnecessary legal conflicts.
One of the key points of this process is the notice of voluntary withdrawal to the company and one of the points that generates the most doubts: how many days must be given, how to do it correctly and what happens if the deadline is not respected.
What is a voluntary withdrawal?
Voluntary termination is the legal way to terminate an employment contract by decision of the employee. Voluntary resignation from the job is included in article 49.1.d of the Workers’ Statute and does not require the employee to give explanations nor justify the reasons for leaving.
As it is a personal decision, voluntary resignation does not give the right to collect unemployment or receive severance pay since, ultimately, the company has not breached its part of the contract. The SEPE considers that there is no legal situation that justify unemployment benefit given that it is the worker himself who ends the employment relationship by his own decision.
Which If it corresponds, it is the settlementwhich includes the pending salary, the vacation not enjoyed and the proportional part of the extra payments if they are prorated.
However, it is advisable not to confuse a voluntary resignation with other cases, regulated in article 50 of the Workers’ Statute, in which employees can also resign from their employment.
One of these cases is the termination of the contract due to serious breaches by the company (recurrent non-payment of wages, abusive changes in working conditions, etc.). In these cases, and as long as the conditions are met, the worker can terminate the employment relationship and have the right to compensation or unemploymentbut it is not a voluntary withdrawal per se.
In which cases can the worker request voluntary leave?
A worker can ask for voluntary withdrawal at any time, without having to spend a minimum amount of time in the company. The only obligation is to respect the notice period established in the collective agreement or indicated in the contract.
Unlike dismissal, in voluntary dismissal it is not necessary justify the reason for resignationalthough among the most common cases are job changes due to having received a better job offerin response to a toxic work environment by their colleagues or superiors.
In any case, the employee can reserve this reason and not state it in his request for voluntary resignation or in the exit interview that some companies do for those who choose this route.
How to notify the company of a voluntary withdrawal
The law does not require the use of a specific format, as long as there is evidence that the company has received the voluntary withdrawal request. However, it is best to always do it in writing.
Verbal communication can give rise to misunderstandings or to discussions about dates. The usual thing is to deliver a signed and dated letter, requesting a sealed copy. It is also valid to send it by burofax or by corporate email, as long as there is evidence that the company has received it and the date on which it was notified is recorded.
The objective of doing so in writing is to make it clear that the decision is voluntary, to record the date on which it is communicated and, therefore, the notice period begins, and what the last day of effective work will be (end of the notice period).
How many days’ notice is needed for voluntary withdrawal
The Workers’ Statute does not establish a specific period of days of notice. Instead, it refers to what is established in the collective agreement or indicated in the employment contract.
In practice, the most common period is 15 calendar days, but it is not a universal rule. Some agreements extend this period to 30 or 60 days or adjust it depending on the position or seniority of the employee.
If neither the contract nor the collective agreement establishes a specific period, this 15-day notice is usually applied as a general reference. Therefore, before communicating the termination, it is important to review which agreement actually applies or carefully review the employment contract to avoid surprises.
However, even once the request for voluntary leave has been communicated to the company, the employee has the possibility of regret and cancel that resignation. However, depending on when this rectification occurs, it may or may not be accepted.
The Supreme Court jurisprudence has made it clear that the worker can retract his decision as long as the notice is still in progress and the employment contract remains in force. That is, until the effective date of the withdrawal arrives, which must be indicated in the voluntary withdrawal letter.
If the worker communicates that he is leaving but, before the notice ends, communicates in writing and verifying that the company has been notified of his desire to continue, the company should accept it. In fact, if the company does not accept this rectification without justified cause, it could be considered an unfair dismissal and, in that case, it should compensate the employee.
Now, this possibility is not automatic. The Social Chamber of the Supreme Court also has passed sentence establishing that, if the company has already acted based on that departure, for example, hiring another person to replace the employee who had resigned, the retraction may not have effect and the company would be exempt from accepting his reinstatement, without this meaning that an unfair dismissal has been incurred.
In other words, you can reconsider the voluntary resignation and regret it until the company has hired a substitutebut not beyond, even if you are still in the notice period.
What happens if the notice days are not met?
Failure to respect the notice does not invalidate the voluntary withdrawal. The worker can also leave. However, failure to comply with this requirement may have financial consequences for the employee.
If the collective agreement or the contract allows it, the company can deduct from the settlement the days of notice not served, calculated on the daily salary. This reduction is not a penalty, but rather compensation for a few days that the employee was supposed to work and has decided not to, so they are deducted from his “account” in the settlement.
Of course, the courts They have qualified this pointand for the discount to be valid, the company must have previously informed in writing of the failure to comply with the notice period and the consequences of not respecting it. If this communication is not made, the discount in the settlement may be considered improper.
Under no circumstances can the company impose additional penalties or force the employee to stay against their will.
Voluntary resignation letter template
As an example, this is a simple and valid sample voluntary withdrawal letter, following the usual forms and legal practice:
Subject: Communication of voluntary withdrawal
For the attention of (Company Name):
I, (name and surname), with DNI (number), communicate my decision to voluntarily leave the company (name of company), where I provide services as (job position).
In accordance with the provisions of the collective agreement and article 49.1.d of the Workers’ Statute, I comply with the corresponding notice period of (number of days) days, with my last day of work being (date).
I request that, at the end of the employment relationship, the settlement and delivery of the settlement be carried out in accordance with current regulations.
In (place), on (date).
Signature:
(Name and surname)
This example model can be adapted according to the agreement or specific circumstances, but it must include the essential data so that the communication is valid and unequivocal, indicating the data related to the employee, his position, date on which it is carried out and last day of work.
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