In our work as a labour advisor, we want to keep you informed about important aspects of personnel management that may affect your company. One of these issues is the  use of the replacement contract  and its implications when a worker, after maternity leave, requests vacation. Below, we explain the key points to avoid legal and labour problems.

What is a replacement contract?

The replacement contract, previously known as a temporary contract, allows the temporary hiring of an employee (substitute) to cover the absence of another employee whose contract has been suspended, with the right to reserve his or her job. This contract is applicable in situations of temporary disability, leave for birth and care of a minor, or leave of absence.

Please note:  The law states that once the incumbent employee returns to his or her position, the replacement contract automatically expires. It is not an open-ended contract, but its duration is limited to the period of absence of the incumbent employee.

Replacement and training contract

It is possible to hire a substitute even before the absence of the regular employee, so that he or she receives a minimum of training in his or her duties. In addition, the law allows the substitute to perform other tasks that the company considers necessary, without necessarily having to perform the same functions as the employee who is on leave.

Holidays after maternity leave

It is common for a female employee to request her vacation after maternity leave. However,  vacation is not a reason for suspension of the contract  with the right to reserve a position. This means that the replacement contract cannot be extended to cover the vacation period of the incumbent employee.

Attention:  Courts consider that vacations are a completely foreseeable situation, so it is not appropriate to use a replacement contract for these absences.

What to do then?

Since the last labour reform, the regulations establish that to cover holiday periods, the company must use a temporary contract due to production circumstances, specifically adapted to these needs.

Specific cases: maternity, breastfeeding and consecutive holidays

In situations where a worker accumulates paid breastfeeding leave after her maternity leave, followed by her vacation, it is important to take into account the following:

• Termination of the replacement contract : The replacement contract must end at the end of the breastfeeding leave and  before the employee begins her vacation . Failure to do so risks the contract being interpreted as indefinite, which could lead to legal problems and claims for unfair dismissal.

Consequences of not terminating the contract on time

If the substitute's contract continues during the employee's vacation, the termination of said contract may be considered an unfair dismissal, with all the legal implications that this entails.