Christine Thiele Balms Abogados | Balms Marbella
The Labour Code stipulates that in the event of dismissal the employer shall excuse the employee concerned from work duty for at least half of the notice period. Any fraction of a day shall be applied as a full day. The exemption from work duty shall be allocated in not more than two parts, at the employee’s discretion. For the period of being excused from his duties the employee shall be entitled to absentee pay, except if he would not be eligible for any wages otherwise.
At the same time, in many cases, following the event giving reason for the termination of the employment, the employer excuses the employee from work duties for the full duration of the notice period. In general, its reason is that either the employer had lost its confidence in the employee, or he simply does not wish the employee without motivation to be further employed for the remaining part of the notice period. Let us see what the law set forth for this period.
Employees are entitled to paid annual leave based on the time spent at work, comprising vested vacation time and extra vacation time. Time spent at work shall include any duration of exemption from work as scheduled; any duration of paid leave; any duration of maternity leave; the first six months of leave of absence without pay for caring for a child (Section 128); any duration of incapacity to work; any duration of leave taken up to three months for the purpose of actual voluntary reserve military service; and the duration of exemption from work specified in Paragraphs b)-k) of Subsection (1) of Section 55. Thus, it is obvious that vacation shall be granted for such durations when the employee does not spend at work, thus the vacation shall be granted for the duration of incapacity for work, as well as for the duration of the vacation as well. It is also obvious that in case of notice, vacation shall be granted for half of the notice period despite of the fact that the employer shall discharge the employee under the employment according to the law.
As referred to above, several employers argued that the voluntary discharge for another half of the duration of the discharge is not mandated by the law, thus it is not granted vacation. We have highlighted the misinterpretation of the law in many analysis and our position was also confirmed by the No. Mfv. II.10.053/2017/4. of the Supreme Court. In the opinion of the Court, there is no significance whether the employer works only during part of the notice period. As the discharge of the employee under employment shall always be deemed as completed under the law.
Departamento de Comunicación10/10/2019
From Balms Abogados, we want to introduce everyone to the opening of the new Sports Law Department of our firm, which will be coordinated by our Lawyer from the Marbella office, Adrián Castro.