In the context of employment relationships, situations can arise where an employee stops turning up to work without any prior notice and without offering the company any explanation. This lack of communication creates uncertainty, as the company does not know whether it is dealing with a justified absence, a temporary inability to attend work, or a definitive intention to end the employment relationship.
Although the term “workplace ghosting” has become popular in recent years to describe this kind of behaviour, from a legal standpoint it must be analysed as a possible unjustified abandonment of the workplace or a potential tacit resignation. The key question is whether the employee genuinely intends to terminate the contract, or whether the company must instead follow a disciplinary dismissal procedure.
The answer is not automatic. Under Spanish law, an unjustified absence from work does not, by itself, terminate the contract, nor does it allow the company to presume a voluntary resignation. Case law requires that an employee’s resignation reflect a clear, conscious and unequivocal intention to end the employment relationship.
Key points
- An employee who stops turning up to work is not automatically treated as having resigned voluntarily: resignation requires a clear, conscious and unequivocal intention to leave.
- So-called “workplace ghosting” must be assessed legally as a possible abandonment of the workplace, not as an automatic resignation.
- The company must document its attempts to make contact, check whether there is a justified cause, and review the applicable collective agreement before taking any action.
- Before making any decision, it is advisable to send a formal, verifiable notice, usually by burofax (a certified registered letter with proof of content and receipt).
- Following the Spanish Supreme Court ruling of 18 November 2024, employers must now grant a prior hearing to the employee before proceeding with a disciplinary dismissal.
- Acting without sufficient evidence of the employee’s intention to resign can turn the termination into an unfair dismissal.
What counts as unjustified abandonment of the workplace?
Abandonment of the workplace occurs when an employee stops turning up to work and neither explains the reason for their absence nor formally states their intention to end the employment relationship.
However, the mere fact that an employee is absent does not automatically mean they have voluntarily resigned. The absence may stem from very different circumstances, such as temporary incapacity, an accident, a serious personal situation, or simply an unjustified absence that could warrant disciplinary action.
Resignation can be express, through a direct statement from the employee, or tacit, when the employee’s conduct unequivocally shows a definitive intention to leave their job. To rely on this second option, the company must be able to prove that intention through objective facts.
When can a resignation be considered voluntary?
An employee’s mere absence for several days does not, on its own, amount to a voluntary resignation.
To establish a tacit resignation, there must be, in addition to the non-attendance, other elements pointing to the employee’s intention not to continue the employment relationship. These may include an express statement that the employee will not return, the employee starting another job, or a continued failure to respond to the company’s attempts at contact.
When there is not enough evidence of that intention to leave the job, the company should not treat the employment relationship as terminated by resignation, as it could face a claim for unfair dismissal.
Voluntary resignation or disciplinary dismissal?
The distinction between the two situations is essential.
If there is a genuine resignation, the termination of the contract arises from the employee’s own will and, as a general rule, does not give rise to a right to severance pay or unemployment benefit.
Conversely, when the company decides to terminate the contract because of unjustified absences, it must follow a disciplinary dismissal procedure, complying with the requirements set out in employment legislation and the applicable collective agreement. If the company is considering communicating its decision by email, it is worth checking first whether it is valid to dismiss an employee by email in Spain, since the way the decision is communicated can also affect the validity of the dismissal.
For that reason, before making a final decision, the company must weigh up the circumstances involved and the evidence available.
How should the company act when an employee fails to attend work?
Faced with unjustified non-attendance, the company must act in an orderly and well-documented manner.
Try to contact the employee
The first step should be to try to reach the employee through the usual channels of communication: phone calls, email, messages or any other means used in the employment relationship.
It is important to keep evidence of every attempt made, as this may prove relevant if a claim is later brought.
The company should bear in mind that the absence may be due to circumstances beyond the employee’s control, such as an accident, hospitalisation or temporary incapacity. Medical certificates for temporary incapacity are now sent directly between the public health service and Spain’s National Social Security Institute, so an abandonment of the workplace should never be presumed automatically.
Check whether there is a justified cause
Before taking any action, it is worth checking whether there is any circumstance that could justify the absence, such as temporary incapacity, statutory or contractual leave, a previously reported incident, or a case of force majeure.
Review the applicable collective agreement
The collective agreement may set out specific consequences for unjustified absences, as well as additional requirements for taking disciplinary action.
For this reason, reviewing it is essential before starting any procedure.
Send a formal, verifiable notice
If the employee continues not to attend work and does not respond to attempts at contact, it is advisable to send a formal, verifiable notice, usually by burofax with certified content and proof of receipt.
The notice should request justification for the absences and require the employee to return to work, making clear that the company will take the appropriate legal steps if it receives no response.
It is not advisable to state directly that the company considers the employee to have voluntarily resigned, since that conclusion must be backed by sufficiently proven facts.
Disciplinary dismissal and the prior hearing
If the company ultimately opts for a disciplinary dismissal due to unjustified absences, it must meet the formal requirements set out in employment legislation and the applicable collective agreement.
In addition, following the Spanish Supreme Court ruling of 18 November 2024, the employee must be granted a prior hearing so they can put forward their arguments before a final decision is taken, in accordance with Article 7 of International Labour Organization Convention No. 158. You can read more about the obligation to give a prior hearing in disciplinary dismissal and its impact on compensation for unfair dismissal.
This step is independent of the dismissal letter and is intended to guarantee the employee’s right to be heard before the contract is terminated, unless there are circumstances that make it reasonably impossible to carry out.
The situation during the probationary period
The probationary period is subject to specific rules. Article 14 of the Spanish Workers’ Statute allows the employment relationship to be terminated during that period without the need to state a reason, unless the collective agreement sets out different conditions.
Even so, it is advisable to try to contact the employee beforehand to rule out the absence being linked to a circumstance that could affect the company’s decision.
The current approach taken by the courts
Case law maintains a consistent approach: an unjustified absence does not, on its own, amount to a voluntary resignation.
To establish a tacit resignation, there must be conduct on the employee’s part that clearly and unequivocally shows their intention was to end the employment relationship.
When that intention cannot be proven, the company’s unilateral termination may be treated as an unfair dismissal.
Unjustified abandonment of the workplace does not automatically terminate the employment contract. The company must examine the specific circumstances of each case and prove, through objective facts, what the employee’s true intention was before treating the situation as a voluntary resignation or proceeding with a disciplinary dismissal.
Acting carefully, keeping proper records and following the legally established procedure reduces risk and puts the company in a stronger position to defend its decision if a legal claim is later brought. Conversely, acting hastily or on an incorrect basis can turn an initially straightforward situation into an employment dispute with significant financial and organisational consequences for the company.
At Blegal, we advise companies, self-employed professionals and HR departments on the full management of employment relationships, from disciplinary procedures and contract terminations to the prevention and resolution of workplace disputes when an employee stops turning up to work without explanation.
Our team offers close, specialist advice tailored to each organisation’s needs, covering both day-to-day employment management and the drafting of workplace policies, equality plans and strategies to ensure the proper management of human capital.
