Resigning in Spain: Notice, Final Settlement and Unemployment

Luisa is 27, Colombian, and lives in Palma with her residence and work authorization. For two years she has worked as a receptionist at a hotel in the city. This week she received the offer she was hoping for: a better position with a hotel chain in Madrid. There is just one problem: she has to start in eight days. (The details of the case are illustrative.)

If you are thinking about resigning in Spain because something better has come up, you probably have the same questions as Luisa: how much notice you have to give, what happens if you don’t, whether you will get your final settlement and what happens with unemployment benefit. In this article we explain it step by step. If you would rather have your case reviewed before you take the step, you can write to Fernanda Vargas on WhatsApp or book an appointment on her Calendly.

“If You Leave Without Proper Notice, I Won’t Pay You Anything”: Luisa’s Offer

Luisa is sure: she wants to accept the job in Madrid. She checks the hospitality collective agreement (convenio colectivo) that applies to her and sees that, for her job category, it requires 15 days’ notice. She can only give eight.

Somewhat anxiously, she tells her boss. His answer does not reassure her: “If you leave without proper notice, I won’t pay you anything, no final settlement and no vacation”. Luisa also has 10 days of vacation she has not been able to take.

And there is a third question keeping her up at night. In the new job she will have a probationary period. If she doesn’t pass it, will she be able to claim unemployment benefit?

These are three very common questions, and her boss’s threat is common too. Let’s go through them one by one. The good news, to get ahead of ourselves, is that the threat does not hold up as stated.

Resigning Is a Right: You Need Neither Permission Nor a Reason

The first thing Luisa should know is that she does not need the hotel’s permission to leave. Resigning, that is, ending your employment contract of your own free will, is a right of the worker.

The Workers’ Statute (Estatuto de los Trabajadores) sets it out in Article 49.1.d, which lists the following among the ways a contract ends:

“By resignation of the worker, with the prior notice set by collective agreements or local custom.”

Put simply: you can leave whenever you want, but you have to give the notice set by your collective agreement or, if the agreement says nothing, the notice that is customary in your area and your sector.

Resignation is what lawyers call a unilateral act: it depends only on you. You don’t have to explain why you are leaving or wait for the company to accept it. If Luisa’s boss told her “I don’t accept your resignation”, it would change nothing: Luisa can leave anyway.

That said, the resignation must be clear and unequivocal. In other words, there can be no doubt that you want to leave and when. A comment made in anger or an ambiguous message can cause problems. That is why the safest thing is to give it in writing, with the date on which you want it to take effect, and keep a copy signed or stamped by the company.

Notice: How Much, How and Where to Check It

Notice (preaviso) is the time you have to give the company before you leave. It allows the company to get organized and find someone to replace you.

Here is one of the most important points of this article: the Workers’ Statute does not set a general notice period for everyone. You often hear that “you have to give 15 days’ notice”, but the law does not say that. It refers to the collective agreement that applies to you or, if that agreement does not cover it, to local custom.

That is why the first step is always to check your collective agreement. Many agreements set different periods depending on the job category: a management position is not the same as an entry-level one, for example. In Luisa’s case, her agreement requires 15 days for her category. Another person, with a different agreement or a different job, may have a different period.

Some tips to find your notice period:

• Check your contract and your payslips: they usually state the collective agreement that applies to you.
• Look in that agreement for the section on voluntary termination, resignation or notice.
• Check which period applies to your job category, not just the general period.
• If in doubt, ask the company or the workers’ representatives to point you to the agreement and the specific article.

As for how, do it in writing. A signed letter, handed in with a copy that the company signs as received, or sent by a method that leaves a record of the date and the content. That way nobody can later dispute when you gave notice.

What Happens If You Don’t Give Enough Notice

Luisa cannot meet the 15 days. What are the consequences?

What cannot happen is that the resignation stops being valid. Luisa can leave in eight days even though her agreement asks for fifteen. The contract ends all the same.

The usual consequence is financial. Many collective agreements allow the company to deduct from the final settlement the salary for the days of notice that were not respected. In Luisa’s case, if her agreement provides for it, the hotel could deduct the days missing to complete the 15 days of notice.

That is why it is so important to read the agreement carefully: what the company can deduct, and under what conditions, depends on what it says. If your agreement does not provide for that deduction, the situation is different, and you should have your specific case reviewed before signing anything.

What the company cannot do is what Luisa’s boss is threatening: keep the entire final settlement and the vacation pay as a punishment for not giving notice in time. The deduction, where it applies, is limited to the days of notice not respected. Everything else they owe you must be paid.

The Final Settlement: What They Must Pay You Even If You Leave

The final settlement (finiquito) is the document that settles the amounts the company owes you when the contract ends. In everyday language, “the finiquito” is also that money.

The law requires the company to prepare it. Article 49.2 of the Workers’ Statute states that the employer, when notifying the termination of the contract, must enclose a draft of the settlement document listing the amounts owed. And it adds a right that many people don’t know about: you can ask for a legal workers’ representative to be present when you sign the receipt for the final settlement.

Even if you leave of your own free will, and even if you have not given the full notice, the final settlement includes:

• Outstanding salary: the days worked in the last month that have not yet been paid.
• The proportional share of the extra payments you have earned and not yet received.
• Vacation earned and not taken.
• Where applicable, the deduction for the days of notice not respected, if your collective agreement allows it.

In Luisa’s case, her 10 days of pending vacation must appear in the settlement. If you want to know more about this point, we explain when they are paid and when they are lost in our article on unused vacation in Spain.

There is one thing the final settlement does not include when you resign: severance pay. Severance pay is compensation for losing your job that is paid, for example, in some dismissals. When you are the one who decides to leave, there is no severance pay. Luisa will not receive severance pay for leaving the hotel.

Before signing, review the draft calmly. Check the days, the extra payments and the vacation. If you do not agree with the amounts, you can sign stating “recibí, no conforme” (received, not in agreement). That way you record that you received the document, but not that you agree with what it says. On the value of what you sign when you leave, you may also be interested in our article on whether your signature counts when you waive labor rights.

Resignation and Unemployment Benefit: What You Should Know Before You Leave

This is the part where you need to be most careful. To receive unemployment benefit (prestación por desempleo, known as paro), you have to be in what the law calls a “legal situation of unemployment” (situación legal de desempleo). It is the list of situations in which you are considered to have lost your job without wanting to: a dismissal, the end of a temporary contract and other causes set out in Social Security (Seguridad Social) rules.

Voluntary resignation (baja voluntaria) is not a legal situation of unemployment. In other words: if you resign, you are not entitled to unemployment benefit because of that resignation.

And what if Luisa moves to Madrid and does not pass the probationary period in the new job? In that case she loses a different job, at another company. For those situations, Social Security rules set out specific rules on access to the benefit. You should not assume that you will receive unemployment benefit, nor that you won’t: the prudent thing is to get informed before resigning, with your specific case in front of you.

If your decision depends on knowing what would happen with unemployment benefit in the worst case, ask before handing in the letter. Once the resignation has been submitted, it may be too late to change your plans.

When You Should Not Resign: Termination for the Employer’s Breach

Luisa is leaving because she has found something better. But some people want to leave for another reason: the company does not pay them, always pays late or has changed their working conditions in a way that undermines their dignity. In those cases, resigning can be a mistake.

If you are leaving because of a serious breach by the company, the right route is not resignation but asking the court to terminate the contract. This is governed by Article 50 of the Workers’ Statute, which includes among the just causes for requesting it:

“Any other serious breach of their obligations by the employer”

The difference is huge. If the court rules in your favor, the contract ends with the right to the severance pay for unfair dismissal (despido improcedente) and to unemployment benefit. If you simply resign, you leave with no severance pay and no unemployment benefit.

There is an important detail: as a general rule, you have to keep working while the claim is decided. That is why you should not take the decision lightly or stop going to work on your own initiative. If you are in this situation, talk to Fernanda Vargas, employment lawyer in Madrid, before making a move. On our labor law page you will find more information on how she can help you.

And a warning: resignation is not a tool to pressure the company. If you threaten to leave in order to negotiate and the company accepts your resignation, there may be no going back.

Steps to Resign Properly and What to Put in the Letter

If, like Luisa, you have decided to leave, these are the steps to do it properly:

• Review your collective agreement and check the notice that applies to your job category.
• Work out the effective date, that is, your last day of work, and consider whether you can meet the notice period.
• Write the resignation letter and hand it in writing.
• Ask for a copy signed by the company or send it by a method that leaves a record of the date and the content.
• Ask for the draft settlement and review it before signing.
• If you wish, ask for a legal workers’ representative to be present when you sign the final settlement.
• If you do not agree with the amounts, sign “recibí, no conforme”.
• If you are worried about unemployment benefit or believe the company has seriously breached its obligations, ask before handing in the letter.

The resignation letter does not need special wording. It just needs to be clear. This is the minimum content it should have:

• Your full name and your identity document (DNI or NIE).
• Your position or job category.
• The name of the company and, if you wish, the workplace.
• A clear sentence stating your decision to resign voluntarily.
• The effective date: the last day you will work.
• A request for the draft settlement.
• The date of the letter and your signature.

In Luisa’s case, the letter could say, in essence, that she is giving notice of her voluntary resignation as the hotel’s receptionist, effective on her last day of work, and that she requests the draft settlement. She does not have to explain that she is moving to Madrid or why.

How Luisa’s Case Is Resolved

Luisa can resign whenever she wants. She does not need the hotel to accept her decision. She hands in her letter in writing and keeps a signed copy.

Since her agreement requires 15 days’ notice and she can only give eight, the hotel could deduct from her final settlement the days of notice not respected, if her agreement provides for it. But it cannot refuse to pay her final settlement. Luisa is entitled to the salary for the days worked, the proportional share of the extra payments and her 10 days of unused vacation.

She will not receive severance pay, because she is leaving of her own free will. As for unemployment benefit, resigning does not entitle her to it, and if she does not pass the probationary period in the new job, access is subject to special rules that she should look into before taking the step.

And if her reason for leaving had been a serious breach by the hotel, resigning would have been a mistake: the right course would have been to request termination of the contract under Article 50 of the Workers’ Statute.

Frequently Asked Questions

If you are thinking about resigning and want to do it without losing money or rights, write to Fernanda Vargas on WhatsApp or book an appointment on her Calendly. She will review your collective agreement, your final settlement and your options before you take the step.