UNIT 9 Suspension of employment relationship leave of absence PDF

SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE UNIT 9  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP Articles 45-48 WS. The suspension of the employment contract can be defined as the temporary release from the basic obligations to work and p...

SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE UNIT 9  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP Articles 45-48 WS. The suspension of the employment contract can be defined as the temporary release from the basic obligations to work and pay for the work, with the continuity of the legal bond.  EFFECTS OF SUSPENSION - Temporary nature of the situation. - No provision of work during it. - No remuneration. No right to salary. - Some of the suspensive situations are protected by Social Security. - Continuity and survival of the employment contract. The contract is not extinguished. - The employee's duties arising from the employment contract, such as the duty of good faith, the duty not to compete unfairly, etc., are maintained. - Time not worked counts for seniority purposes.  CAUSES OF SUSPENSION Article 45. 1. Work contracts may be suspended for the following reasons: a) Mutual agreement between the parties. b) Reasons validly reflected in the employment contract. c) Workers’ temporary incapacity. d) Birth, adoption, guardianship for adoption or foster care of minors under six years of age or minors over six years of age with disabilities or who, due to their personal circumstances and experiences or because they come from abroad, have special difficulties of social and family insertion duly accredited by the competent social services. e) Risk during pregnancy and risk during breastfeeding of a nine month minor. f) The exercise of a representative public office. g) The worker’s imprisonment, as long as there is no conviction. h) Suspension of salary and employment for disciplinary reasons. i) Temporary force majeure. j) Economic, technical, organization or production reasons. k) Forced leave. l) The right to strike. m) Legal closure of the company. n) Worker´s decision who is forced to leave her job as a result of being a victim of gender violence. o) Enjoyment of parental leave  CAUSES OF SUSPENSION 1. Agreements between employer and worker. -Mutual agreement or contractual suspensive clause. 2. For reasons of health, maternity, paternity or care of children or family members. -Health reasons: -for birth and care of a child. - Risk during pregnancy 3. Due to the impossibility of the worker to carry out the work. -Deprivation of freedom. Suspension as long s there is no condemnatory sentence and imprisonment. 4. Due to factual causes that make it difficult to perform the work. -Force majeure 5. By choice of one of the contracting parties. LEAVE OF ABSENCE (excedencias)  CAUSES OF SUSPENSION 2. FOR REASONS OF HEALTH, MATERNITY, PATERNITY OR CARE OF CHILDREN OR FAMILY MEMBERS. -Health reasons: WORKERS TEMPORARY INCAPACITY max 365 days extendable to 180 days + (180 days more)*. Permanent incapacity can be: -partial: not total but there is a reduction equal to or greater than 33% of his normal performance. -total : for the regular or usual profession -absolute: for all jobs - severe: for all jobs and need assistance from third parties for daily basic activity. -FOR THE BIRTH AND CARE OF A CHILD : Maternity leave now leave for birth and care of a child. For both parents 16 weeks which 6 weeks uninterrupted and immediately after childbirth rest distributed up to the first year. Includes adoption, guardianship and foster care and children born through surrogacy - FOR RISK DURING PREGNANCY and BREASTFEEDING - Due to labour conditions.  CAUSES OF SUSPENSION 3. DUE TO THE IMPOSSIBILITY OF THE WORKER TO PROVIDE THE SERVICE. -Deprivation of freedom. Suspension as long s there is no condemnatory sentence and imprisonment.(PRINCIPLE OF PRESUMPTION OF INNOCENCE) - If there is a conviction and jail the contract is terminated due to absence from work.( disciplinary dismissal) - If the worker is acquitted the suspension is ended. 4. DUE TO FACTUAL CAUSES THAT MAKE IT DIFFICULT TO PERFORM THE WORK. -Force majeure - ETOP reasons - Victim of gender violence  LEAVE OF ABSENCE (excedencias) 1.Forced leave of absence due to the employee's election or appointment to public office. - 2. Voluntary leave of absence. 3. Leave of absence to care for a dependent family member up to the second degree or for a child until the child reaches three years of age.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE 1. FORCED LEAVE OF ABSENCE due to the employee's election to public office a) Exercise of representative public office (art. 45.1.f) ET). - Appointment or election to a public office that makes attendance at work impossible b) (arts. 45.1 k and 46.1 ET). c) Exercise of trade union functions at provincial or higher level while holding a representative position (art. 46.4 ET). Art. 9.1.b) Organic Law on Freedom of Association (LOLS) attributes the effects of the forced leave of absence if the union is one of the most representative. d) Fulfillment of an inexcusable duty of a public and personal nature When it is impossible for the worker to perform the job for more than 20% of the working hours and for at least 3 months.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE EFFECTS Suspension of the employment contract -- Right to reserve the job position. - Calculation of the time on leave of absence for seniority purposes. Deadline for requesting reinstatement: 30 calendar days. If reinstatement is not requested: the contract is terminated due to abandonment of the employee's job (unilateral decision of the employee without prior notice). Lack of reinstatement attributable to the employer is considered as dismissal. Termination of the contract by unilateral decision of the employer. It will be considered unfair due to lack of cause and non-compliance with formal requirements.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE 2.-VOLUNTARY LEAVE OF ABSENCE. A minimum of one year's seniority in the company is required Duration: minimum 4 months and maximum 5 years. This right may only be exercised again by the same employee if four years have elapsed since the end of the previous voluntary leave. There is no right to reserve the position, but there is a preferential right to reinstatement when there is a vacancy in the same or a similar category.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE Effects: - Preferential right of reinstatement if there is a vacancy in the company in your professional category or similar. - - when to apply for reinstatement: before the end of the leave of absence or immediately thereafter. - Upon request for reinstatement: the employer cannot cancel the job if there is a vacancy in the company in the same or a similar professional category. - If there is an application and a vacancy: if the employer fails to comply, it is equivalent to dismissal. - If there is an application and a vacancy, but there is a delay in acceptance: the employee may bring an action for damages with the right to compensation equivalent to the wages lost. - If there is an application for reinstatement and no vacancy: the burden of proof is on the employer. - Seniority: time on voluntary leave is not calculated for seniority purposes. - No obligation to pay contributions. - It is not a situation protected by Social Security. SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE -3. LEAVE OF ABSENCE DUE TO CHILD CARE - Birth of a natural child - Adoption - Guardianship for the purpose of adoption - Permanent foster care Duration - Until the child turns 3 years. ( as from the date of birth or, from the date of judicial or administrative decision). It can be enjoyed in installments.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE Effects: - Reservation of the same job for 1 year,( or 15 months (general large family) or 18 months (special - large family: 5 or + 5 children, 4 children if 3 are by childbirth or adoption or multiple guardianship or foster care, 4 children if annual income is below a limit). - Reservation of a job in their professional group or equivalent professional category: during the 2nd or 3rd year. - Seniority: calculated for the entire period of leave. - Right to attend professional training courses: called by the employer. - Right to return to work under the same conditions as previously enjoyed. - No obligation to pay contributions.  SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE 3. LEAVE OF ABSENCE TO CARE FOR A FAMILY MEMBER. - - Care of a relative by consanguinity or affinity up to the 2nd degree who for reasons of age, accident, illness or disability and is unable to fend for him/herself and does not perform any paid activity. Duration: - 2 years ONLY extendable by collective agreement. To be counted from the time it is requested and can be taken in several periods SUSPENSION OF THE EMPLOYMENT RELATIONSHIP : LEAVE OF ABSENCE Effects: - During the first year, he/she shall be entitled to a job - reservation. After this period, the reservation shall be referred to a position in the same professional group or equivalent category. - The period during which the employee remains on leave of absence shall be computable for seniority purposes. - Right to attend professional training courses: convened by the employer. - No obligation to pay contributions.  3 NEW PERMITS FOR CHILD AND PARTNER CARE 2023 The Family Law is a new regulation promoted by the Government to improve the work-life balance of employees in Spain. RD Law 5/2023, of 28 June. To comply with EU Directive -2019/1158 1. 8-WEEK PARENTAL LEAVE FOR THE CARE OF CHILDREN. Employees are entitled to parental leave for the care of a son, daughter or foster child (in care for more than a year), until the child reaches the age of eight. Fathers and mothers can request eight weeks to care for their children, but they will not receive the salary corresponding to the days of leave. This leave can be continuous or discontinuous. With Royal Decree-Law 2/2024, this legislative amendment would comply with the requirement of a 2-week paid parental leave. For example, for the return to school to facilitate the adaptation of the youngest children or the care of children when you have nowhere to leave them while you are working.  3 NEW PERMITS FOR CHILD AND PARTNER CARE 2023 2. PAID LEAVE OF 5 DAYS TO CARE FOR SECOND-DEGREE FAMILY MEMBERS OR DE FACTO PARTNERS The employee may be absent from work with pay for 5 days due to accident or serious illness, - hospitalization or surgery without hospitalization requiring home rest of the employee's : Spouse. De facto partner. Relatives up to the second degree by consanguinity or affinity. Blood relatives of the de facto partner. Any person who lives with the worker in the same home and needs care. Does this leave have an annual limit in the case of Spain? No, there is no annual limit to enjoy this leave in our country. For example: This measure will allow working people to take care of their children at home, to accompany their partner to the doctor or to take care of an elderly person  3 NEW PERMITS FOR CHILD AND PARTNER CARE 2023 3. PAID LEAVE OF UP TO 4 DAYS FOR UNFORESEEABLE FAMILY EMERGENCIES. - The worker has the right to be absent from work for reasons of force majeure when necessary for urgent and unforeseeable family reasons, related to family members or persons living with them, in case of illness or accident that make their immediate presence indispensable. This leave may be used by the hour or by the day, up to a total of 4 days per year. While the employee takes this leave, the company is obliged to pay the employee's normal salary for the time he/she is absent.