Is it possible to be self-employed or work for others while on leave of absence due to election to public office?
18/01/2022
Is it possible to be self-employed or work for others while on leave of absence due to election to public office?
En los medios
Regarding the judgment of 31 December, 2021
The recent judgment of the “Sala de lo Social” of the Supreme Court studies whether a company's decision to refuse to reinstate the employee to his job after taking an enforced leave of absence for public office can be classified as a dismissal, when the employee, during part of the time was on enforced leave of absence, worked for other companies.
In the present case, the dismissed employee requested up to five forced leaves of absence, one for each of the public offices to which he was appointed. During the second and third leaves of absence, in addition to carrying out the public office for which he had been elected, he worked as an employee for other companies.
When, years later, once the fifth leave of absence was over, he requested reinstatement, the company refused to reinstate him arguing that, since he had worked for other companies, his right to reinstatement had been extinguished.
Carmen Galán and María Segovia, lawyers of the law firm LENER, argued that work for others during the second and third leaves of absence could not justify the denial of the reinstatement of the fifth leave of absence, since there was not a single situation of suspension of the employment contract under Article 45.1 k) of the Labor Code, but that as many forced leaves of absence as public positions held had to be recognized, even if these five positions had followed one another in time without interruption.
Following the aforementioned argumentation, the Supreme Court understands that the work performed during the second and third leaves of absence in no case can it be a valid justification for denying reinstatement after the end of the fifth leave of absence, especially when, after this period of service as an employee, the company granted the employee two more leaves of absence. Therefore, the unfairness of the dismissal is confirmed.
Regardless of the factual circumstances of the case, through this ruling the Supreme Court resolves the main question that accompanied the parties throughout the judicial proceedings: regardless of the administrative regulations on incompatibilities of public offices, when Article 46.1 of the Labor Code provides "for a public office that makes it impossible to attend work", does it refer to all types of work or only to the work that forces the appointed person to take leave of absence?
The “Sala de lo Social” is in favor of the incompatibility of the exercise of public office with the performance of a third job, so that, in a situation of leave of absence for election to public office, it is not possible to provide services as an employee or self-employed, so that the only professional activity of the employee on leave of absence would have to be limited to the exercise of public office.
