Employment law
Can an employee ask for a leave of absence for personal reasons?
Aïssata, a nurse at Clinique Dakan for eleven years, puts a letter on the director’s desk: her husband has been posted to Dakar for two years and she wants to go with him without losing her job. Resignation, unpaid leave, suspension of the contract? The director hesitates, because each option has very different effects on seniority, payments and return. The Labour Code provides for this case: the leave of absence for personal reasons (mise en disponibilité), a flexible tool, provided its rules are carefully written down.
1. What exactly are we talking about?
Clinique Dakan is a fictitious clinic with 85 employees in Bamako: its name and situation are used purely as an example.
A leave of absence for personal reasons is the position of a worker who, for personal reasons and after being authorised, temporarily stops working for the employer (Labour Code, article L.59). It follows four rules, all set by that same article.
- It starts with the employee: they request it, for personal reasons.
- It depends on the employer: it is exceptional in nature, left to the employer’s sole discretion.
- It is limited in time: ten years at most, renewals included.
- It puts almost everything on hold: no pay or benefits, no promotion, no seniority, no pension rights and, generally, no benefit of the Code’s provisions during the period.
Why this arrangement? It lets the employee pause their career without breaking the link with the company, and lets the employer keep a trained person it would otherwise lose through resignation.
“A leave of absence puts the contract in brackets: no work, no pay, no seniority.”
2. Resignation, suspension, leave of absence: three different doors
| Resignation | Statutory suspension | Leave of absence | |
|---|---|---|---|
| Who decides? | The employee, in writing (L.40) | The law, in the cases it provides: illness, maternity, etc.(L.34) | The employee asks, the employer authorises (L.59) |
| Pay | None, the contract is terminated | Depends on the case (L.36 to L.38) | None |
| Seniority | Long-service payment after ten years (L.54) | Depends on the case | Does not accrue during the period |
| End | Final | Return when the cause ends | Planned return, ten years at most |
For Aïssata, the choice has consequences that can be quantified. If she resigns after eleven years, she is entitled to the long-service payment, calculated like severance pay (Labour Code, article L.54), but she loses her job. If she obtains a leave of absence, she receives nothing, but keeps her job and her accrued seniority.
Example. Aïssata, 400,000 XOF per month, eleven years of service, resigning:
Long-service payment: (5 × 20% + 5 × 25% + 1 × 30%) × 400,000 = 255% × 400,000 = 1,020,000 XOF On leave of absence: 0 XOF today, but a job and eleven years of seniority kept
See also our articles Long-service payment and Employment contract: statutory suspensions.
The most common mistake
Believing that a leave of absence is the employee’s right. The Code makes it an exceptional measure, left to the employer’s sole discretion: the employer may refuse it without having to justify itself under article L.59.
What you need to do
- Require a written, reasoned request from the employee.
- Reply in writing, granting or refusing the leave.
- Present the three options and their effects to the employee before they choose.
3. During the leave: what stops
During the period, the employee receives neither pay nor benefits. No contributions are therefore paid to INPS, since contributions are based on remuneration (Social Security Code, article 187): the period does not build pension rights.
Seniority is frozen (article L.59). The seniority bonus therefore does not increase: absences for personal reasons are only disregarded up to one month (Labour Code, article L.97). Paid leave does not accrue either, as the leave of absence is not among the periods treated as work (article L.149).
Example. Aïssata returns after two years of leave, with eleven years of accrued seniority:
Seniority bonus when she left: 5% + 6 × 1% = 11% Bonus on her return: still 11%, not 13%
The Code says nothing, however, about working elsewhere during the leave. It is best to settle this in the leave agreement, especially if the employee joins a competitor. On holding multiple jobs in normal times, see Can an employee work elsewhere outside working hours?
What you need to do
- Inform the employee in writing that pay, contributions and seniority stop.
- State in the agreement whether they may work elsewhere, and on what terms.
4. Returning: the area the Code does not cover
The Code sets the maximum length of the leave, not the terms of return. Everything that follows is therefore a matter for the written agreement between employer and employee, and this is where most disputes arise.
- The start and end dates, and whether it can be renewed.
- The deadline for the employee to confirm their return before the end date.
- The post offered on return: the same one, or an equivalent post.
- Whether early return is possible.
- What happens if the employee does not return.
Two rules of the Code frame the difficult cases. If the employee does not return, the employer cannot treat them as having resigned: resignation must be notified in writing and cannot be presumed (Labour Code, article L.40). The employee must be given formal notice, and the consequences then drawn in line with the rules on termination. See Resignation cannot be presumed.
Conversely, refusing to take the employee back at the end of the period means terminating the contract at the employer’s initiative: the dismissal rules apply, including notice, grounds and severance pay (articles L.40 et seq.).
During the absence, the post can be filled by a written fixed-term contract, which may not exceed two years (article L.21). See Fixed-term contract.
The most common mistake
Granting the leave on a mere verbal agreement. On the day of return, no one remembers what was promised about the post or the deadlines.
What you need to do
- Sign a leave agreement setting the dates, the return notice and the post on return.
- Contact the employee in writing before the end date.
- Never treat an employee who does not return as having resigned without a written resignation.
A closer look: an employee’s leave of absence is not a civil servant’s
Leave of absence also exists in the civil service statute, with its own durations and conditions. Much of the content in circulation mixes up the two regimes. For an employee covered by the Labour Code, only article L.59 counts: see Who does the Labour Code apply to in Mali?
Another frequent confusion is with the French “sabbatical leave” or “unpaid leave”, which carry seniority and duration conditions that the Malian Code does not provide for. The Malian Code does, however, provide for other unpaid absences with very different effects: leave for workers’ education or union training, for example, counts as actual work for paid leave, family benefits and seniority (Labour Code, article L.10). A leave of absence counts for nothing.
Key takeaways in 6 points
- Treat a leave of absence as an exceptional favour, which you are free to grant or refuse.
- Never exceed ten years, renewals included.
- Tell the employee they lose pay, contributions, seniority and leave during the period.
- Write an agreement setting the dates, the return and the rules on working elsewhere.
- Give formal notice to an employee who does not return, never presuming resignation.
- Apply the dismissal rules if you refuse to take the employee back at the end.