When a female employee requests to take her vacation after maternity leave, doubts arise as to the possibility of maintaining the substitution contract. The regulations are clear: the substitution contract cannot be extended to cover vacation periods
Replacement contract
The substitution contract, formerly known as an interim contract, is designed to cover temporary absences of employees whose position is reserved by law. This type of contract has specific characteristics:
- Duration: It coincides with the period in which the substitute worker has his contract suspended.
- Termination: The contract terminates automatically when the postholder returns to his or her job.
- Prior training: It is allowed to start the contract before the effective absence to ensure adequate preparation of the substitute.
Application cases
This contract can be used in the following scenarios, among others:
- Temporary incapacity of the substituted worker.
- Suspension of the contract due to the birth and care of a minor.
- Leave of absence for child care.
It is important that the cause of the substitution is reflected in writing in the contract. If it is not clearly specified, this could be considered as an indefinite-term contract, unless there is evidence to the contrary.
Substitution during vacations
Unlike maternity leave or breastfeeding leave, vacation does not constitute a suspension of the employment contract. Therefore, it is not possible to use a replacement contract to cover this period. The courts have determined that:
- Vacations are a foreseeable interruption of the work performance, therefore they do not enable the reservation of a position.
- Vacation substitution must be managed through a temporary contract due to production circumstances.
Risks of maintaining the substitution contract
If the substituted worker finishes her maternity leave and accumulated breastfeeding leave, and subsequently enjoys her vacation:
- The substitution contract must be terminated at the end of the breastfeeding leave.
- Extending the substitution contract during vacation time may imply:
- That the contract is considered indefinite.
- The qualification of unfair dismissal if it ends after the vacation.
Practical example
Imagine the following case:
- A female employee is on parental leave, followed by accumulated breastfeeding leave and subsequently requests her vacation.
- You hired a replacement employee during maternity leave.
Action required: Terminate the replacement contract at the end of the breastfeeding leave. If you fail to do so and the contract continues until after the leave, you could face legal and financial risks arising from a possible wrongful termination claim.
Key recommendations
- Review leave and vacation periods in advance to plan accordingly.
- Formalize substitution contracts including the specific cause of the substitution.
- In case of vacations, use temporary contracts due to production circumstances to cover operational needs.
Compliance with labor regulations is essential to avoid legal risks. Terminate replacement contracts in a timely manner and use appropriate temporary contracts for vacation periods. A planned labor management aligned with current legislation guarantees peace of mind and stability for your company.
For further information, please consult with Labor consulting
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