How Should You Replace an Employee on Vacation in Spain?

Which Contract Should be Used to Replace an Employee on Vacation?

When a company needs to cover the role of an employee who is taking vacation, it’s common to wonder what type of contract should be used. This decision is more important than it may seem, as an incorrect choice can lead to legal consequences, such as a fraudulent contract or even an unfair dismissal.

Since the entry into force of the Labor Reform (Royal Decree-Law 32/2021), which amended the Spanish Workers’ Statute (Estatuto de los Trabajadores), the legal framework and case law are clear on this matter.

Contract Due to Production-Related Circumstances

According to Article 15.2 of the Workers’ Statute, a fixed-term employment contract can only be concluded for:

• Production-related circumstances, or

• Substitution of another employee

In the specific case of vacations, the regulation specifies that this is considered a foreseeable fluctuation in the company’s normal activity, and as such, it must be formalized as a contract due to production-related circumstances.

These “fluctuations” include annual employee vacations.

Why Can’t a Substitution Contract Be Used to Cover Vacations?

The substitution contract (Article 15.3 ET) is intended to cover employees who are absent with a right to job retention, such as:

• Temporary incapacity (sick leave)

• Maternity or paternity leave

• Mandatory leaves of absence

• Participation in selection processes

The Spanish Supreme Court (TS) has repeatedly stated that vacation does not entail a suspension of the employment contract with a reserved position, but rather an ordinary interruption of service provision. Therefore, using a substitution contract to cover vacation is considered a breach of legal form (fraud).

How Should a Contract Due to Production-Related Circumstances Be Formalized?

The company must:

• Clearly specify the reason for the contract, e.g.,
  “Coverage of vacation for [Employee Name] in the position of [Job Title], from [Start Date] to [End Date].”

• Put the contract in writing if its duration exceeds four weeks (Article 8.2 ET).

• Respect the duration limits: maximum of 6 months, extendable to 1 year through a sectoral collective agreement.

• Notify the Public Employment Service (SEPE) and deliver a basic copy to the employee representatives, if any.

There is also a limited use case for predictable, short-term situations (up to 90 non-consecutive days per calendar year), although this is typically used for collective campaigns, not individual vacation replacements.

What About the Permanent-Intermittent Contract?

In some exceptional cases, courts have allowed the use of permanent-intermittent contracts to cover vacation periods, as in Supreme Court ruling 348/2022, dated April 19. However, this option is only valid if:

• The need is recurring, structural, and predictable.

• It is commonly used in seasonal sectors with cyclical activity peaks, where staff vacations create a consistent annual need.

• The requirements of Article 16 ET are fully met.

In general, this is not the most common nor the most advisable method for temporary replacements.

✅ Not Sure What Contract to Use to Replace an Employee on Vacation?

This content is for informational purposes only. If you are a company in need of support with labor management or legal advice, we offer specialized consulting services.

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