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When an employee sends his resignation letter, is it legal to retain that employee indefinitely until a replacement is found? Is it legal to claim damages if he leaves?

This is for Spanish law and more broadly european law.

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    They have indentured servitude in Spain?
    – George White
    Jul 17, 2022 at 16:52
  • What does the contract say about notice periods? Normally, it's something between 1 and 3 months, based on how long the employee was with the company. That period is normally binding, unless the company and the employee agree otherwise.
    – PMF
    Jul 17, 2022 at 16:57
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    In UK when there is no contract, the period of notice is by default the same as the payment frequency. That is, if paid weekly, then a week's notice is required on either side.
    – Weather Vane
    Jul 17, 2022 at 17:26
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    My question is more like, can a notice period be defined as "until a replacement is found" rather than in days/months? Does Spanish or European Law allow to do this?
    – Esteb
    Jul 17, 2022 at 18:05
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    It can't be a simple as that, or a company could hold on to a good employee who wants to leave indefinitely. There would have to be a time limit and/or other stipulations.
    – Weather Vane
    Jul 17, 2022 at 19:21

2 Answers 2

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Involuntary servitude is illegal in Spain/Europe

Has been for more than 100 years.

Once an employee resigns their only obligation is to work the contracted (or statutory) notice period or pay the employer the equivalent salary.

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    Do you have a source for the last part, the "or pay the equivalent" option? My understanding is that the employee is expected to work until the end of the notice period.
    – o.m.
    Jul 18, 2022 at 4:38
  • @o.m. There are exceptions to that. The employer typically needs to pay for the whole notice period, but he might allow (or even request) that the employee leaves immediately (e.g. if he fears that the employee might do more harm than good in the remaining time)
    – PMF
    Jul 18, 2022 at 6:41
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    @PMF o.m.'s point was that the answer says the employEE has the option to pay the equivalent salary rather than work the notice period. I believe Dale is wrong about that.
    – Martin Bonner supports Monica
    Jul 18, 2022 at 8:59
  • @MartinBonnersupportsMonica True, I have never heard of this. However, that doesn't make it impossible, just rare (transfer fees are very common when hiring expensive soccer players, for instance).
    – PMF
    Jul 18, 2022 at 9:25
  • But if a transfer fee is payed, that is normally done by the new employer, not by the employee himself. And I think that would still require consent by the old employer to accept some payment to allow for an earlier leave.
    – PMF
    Jul 18, 2022 at 9:28
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In some parts of Europe (), employment contracts normally contain notice periods which the employee must respect.

A default applies if nothing is specified in the employment contract:

It is common that employers and employees negotiate a cancellation agreement which reduces this period after notice has been given, but the employee has no right to do that unilaterally. The employer might well refuse to sign such a cancellation agreement unless a replacement can be found. In that case the employee must work for the remainder of the contracted period.

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  • Regardless of the notice period, is it possible per law for the company to retain the employee until a replacement is found, and be sued for damages if he leaves the company without a replacement?
    – Esteb
    Jul 17, 2022 at 18:03
  • @Esteb in principle, if the contract says that the employee may end the employment with some notice period, let's say six weeks, then the employer cannot successfully sue the employee to compel employment for longer than six weeks after the notice is given nor for damages relating to the employee's stopping work six weeks after giving notice. But (1) I know nothing about Spanish labor law, and (2) there may be statutory provisions concerning notice that override the notice provisions in the contract. Furthermore, the fact that the employee would win doesn't stop the employer from suing.
    – phoog
    Jul 17, 2022 at 21:30
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    You'd have to show actual damages that go beyond the fact that the employee is not working (and not getting paid).
    – gnasher729
    Jul 18, 2022 at 7:20
  • @Esteb §622(6) - Notice periods in the case of employment relationships - German Civil Code (Bürgerliches Gesetzbuch BGB) prevents any longer period/conditions than stated in §622(2) being in the contract: For notice of termination of employment by the employee, no longer notice period may be agreed than for notice of termination by the employer.
    – Mark Johnson
    Jul 18, 2022 at 7:23
  • @MarkJohnson Seems entirely fair.
    – gnasher729
    Jul 18, 2022 at 10:49

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