How to Avoid Workplace Conflicts by Applying the Preferential Right to Reemployment

What is the preferential right to reemployment?

The preferential right to reemployment applies to employees who have requested a voluntary leave of absence, as regulated in Article 46.5 of the Spanish Workers’ Statute. This right allows them to return to the company when there is a vacant position of equal or similar category, although it does not imply a job reservation or automatic reinstatement, as reaffirmed by the Supreme Court in several recent rulings.

Why is it important for companies?

Because ignoring this right may constitute a violation of fundamental rights, with significant financial consequences: compensation payments, back wages, and even mandatory reinstatements. It can also harm the company’s internal reputation and open the door to avoidable litigation.

What do the courts say?

Recent rulings from the Spanish Supreme Court, such as STS 190/2025, March 12, 2025, have reinforced the doctrine regarding the preferential right to reemployment. Key takeaways include:

• It is not enough to claim there are no vacancies if temporary workers are later made permanent. This action is considered proof that positions were indeed available.
• The company cannot fill positions of similar category to that of the employee on leave with new hires or contract conversions if there is a pending reemployment request.
• The employee does not need to repeat their request or challenge each denial: a single request remains valid until a response is given or a vacancy arises.

What qualifies as a valid vacancy for reemployment?

Three conditions must be met for reemployment to apply:

1. There must be a genuine vacancy of equal or similar category.
2. The employee must have formally requested reemployment.
3. The vacancy must not already be committed to another valid or exempt preferential reemployment process.

Converting a temporary contract into a permanent one without first addressing a reemployment request may be considered by courts as unfair dismissal or a violation of labor rights.

Risks for the company if not correctly applied

Failing to respect the preferential right to reemployment can lead to significant costs:

• Compensation for unfair dismissal (up to 33 days’ pay per year worked).
• Payment of back wages from the date the employee should have been reinstated.
• Obligation to reinstate the employee if they request it.
• Reputational risk and loss of internal trust in HR processes.

Reemployment is not automatic, but it’s not optional either

The preferential right to reemployment does not require automatic reinstatement of the employee, but it does restrict how companies manage their vacancies. Failing to respect this right may lead to legal and financial consequences. The key is to manage this right proactively, with traceability and proper documentation.

✅ Check out our advisory services on dismissals and workplace conflicts to protect your business.