ATT ASSESSORS Insurance and services Balaguer Lleida

Changes in severance payments for temporary contracts


The Court of Justice of the European Union has ruled in relation to Spanish labor regulations with the sentence of September 14, 2106, which states that, contrary to what has been done so far, the principle of non-discrimination between temporary workers And it should be noted that it demands the equality of its working conditions, it must also be respected in the compensation due to the termination of the contract: until now, this principle of equal treatment was interpreted in the sense that no Different conditions of work could be established without more reason than the temporality of the labor link (nor differentiated salary tables nor the exclusion of temporary workers from certain social benefits nor the reservation for the indefinite of advantages associated with the length of the contract or seniority ), But it has not been questioned until now that the rules of termination of both contracts are different as different are their legal regimes.

Now the Court of Justice of the European Union affirms, and its interpretations of the community Law are binding on the Spanish courts, that between the conditions of work that do not admit differentiation due to the temporality are included the referring ones to the indemnifications by extinction of the Contract Here the confusion begins.

A temporary contract presupposes that there is already a pre-established cause for termination, but also that the contractors have the guarantee that the contract will have at least the agreed duration. Its termination before the scheduled generates the obligation to indemnify the party that is not responsible for it. Civil regulations would require the payment of all the compensation that was worthy of respecting the expected duration of the contract in case of early termination by decision of the employer. In the workplace, for various reasons (among them, that there is not always a certain date of termination of the contract), this is led to the application of the rules regarding the improperness of dismissal, with recognition of The corresponding indemnifications.
From this point of view, therefore, there is no difference between temporary and indefinite contracts.

On the other hand, the termination of the temporary contract for the fulfillment of the provisions of the contract (end of the agreed duration, termination of the work or contracted service, reinstatement of the replaced worker) is not comparable to the dismissal in the contract Undefined But since the Spanish legislator provides for end-of-contract compensation (except in cases of interim), the Court of Justice of the European Union asserts that it is discriminatory that the termination of the contract is compensated in a different way according to the contract being Temporary (12 days of salary per year) or indefinite (20 days).

Given the background, the most probable, despite all the nuances that can be introduced, is that our judicial doctrine, based on this statement, considers that the termination of temporary contracts must be compensated with the same parameters ( 20 days) than the indefinite ones.

On the other hand, the Court of Justice of the European Union specifically pronounces on the interim contracts, in respect to which no compensation is currently set out in the Spanish regulations. The difference in treatment between these contracts and the rest of the temporary ones is not considered by the Court of Justice of the European Union, because it is not relevant to Community law but what it does is to compare directly the treatment of interim contracts with the Of the indefinite ones, and affirms that a national regulation that does not recognize any compensation to the interins is contrary to the normative community whereas yes it is clear it to the fixed ones. The mere interimity is not sufficient reason to exclude the right to this compensation (that as the sentence is formulated it can not be other than the one of the 20 days of the fixed ones, with who is establishing the comparison, and not the one of 12 days of the others Temporary).

What are the consequences of this sentence? Apart from feeding uncertainty and litigation, it is most likely that, without regulatory changes, the judicial doctrine is inclined to recognize in all cases of termination of temporary contracts the indemnification of 20 days per year of service. For that reason the legislative clarification is necessary for this aspect in the national scope, either raising the indemnification of the temporary ones of 12 to 20 days, as it has already been proposed, or generalizing the compensation in a lower amount. What is undeniable is that temporary work will be tackled and this can have perverse effects on employment, while the flexibility of temporary hiring will be disrupted.

Therefore, it should be noted that the Court ruled by the High Court of Justice of the Basque Country the first sentence in Spain that equals the dismissal of fixed and temporary workers and raises the compensation of a temporary contract: October 2016 (No. 1962/2016) of the Social Chamber of this High Court of Justice establishes compensation of 20 days per year worked by a worker from the Basque Foundation for Health Innovation and Research - linked to the Department of Health Of this Autonomy - although it considers that its contract, of investigation, equivalent to a contract for a specific work or service, of more than three years of duration, was of temporary character. In this way, it raises eight days per year to twenty the compensation granted and the Court admits the adjustment to the right of contractuality, but echoing the decision of the Court of Justice of the EU on the 14th of September, he understands that the compensation must be the same as the one that a fixed worker would have fired for objective reasons.

This ruling responds to an appeal against a ruling issued by the Social Court no. 2 of Bilbao that had rejected the demand of the affected worker; Now the Superior Court admits that, despite being a temporary contract, the recent ruling of the Court of Justice of the European Union on September 14 should be taken into account, and determines that compensation must be The same as the one that would be paid to a fixed worker dismissed for objective reasons.

It seems clear that the criterion can now be that of the courts that have to judge possible claims in this regard that may be raised and have to resolve, without any hindrance, in its judicial proceedings until a clear regulation is published In respect to our territory, which seems very difficult at the moment while only one government in functions is maintained.