The self-employed who take advantage of the new ERTE until September will be obliged to maintain their workforce, at least, until 2022. What's more, some businesses could be prohibited from firing for another two and a half years.
Thousands of employers and millions of workers have breathed easier since Tuesday. The new Royal Decree-Law 11/2021 includes the fifth extension of the Temporary Employment Regulation Files (ERTE) and extends the protection until September 30 to businesses in sectors especially affected by the pandemic, which may continue to benefit from exemptions in the payment of Social Security contributions by its employees.
Now, the advantages of ERTE have their counterparts. This new royal decree not only extends the protection mechanisms for employers, but also extends the well-known employment safeguard clause, which obliges all companies to maintain their workforce for six months from the date of extension of the ERTE, as a of consideration for the exemptions from which they benefit.
In other words, in exchange for paying fewer Social Security contributions for workers who are suspended or with reduced hours in ERTE, the self-employed employers commit -many times without knowing it- not to reduce their workforce for at least half anus. This clause is not new, it had already been included since March in Royal Decree 8/2020, in which the ERTEs were made more flexible for the first time, but over time, this condition, which was designed to protect employment, could end up becoming in a poisoned candy for companies. What many do not know is that these six months of prohibition are not restarted with each extension, but are accumulated each time the business accepts an extension without recovering workers.
This cumulative nature of the ERTE may imply a prohibition to dismiss for some businesses that have not dismissed any worker since March 2020, for up to 30 months, at the end of 2023.
The six months of prohibition of dismissal can be accumulated in each extension
This is established in the employment maintenance clause, included with very few modifications in the five royal decrees that have regulated the extension of the ERTE in the last year. This obligation to maintain employment was qualified in the previous Royal Decree 2/2021, of January 26, which extended the ERTE until May. Said rule clarified that the commitment not to lay off for six months is not renewed with each extension: "if the company were affected by a commitment to maintain employment previously acquired, the start of the new period will occur when it has ended".
Therefore, the text continues, "the safeguard clause redisplays all its content, which implies that the companies, once the 6-month periods of employment safeguard that they had acquired as provided for in the previous regulations, have expired, undertake, by virtue of this royal decree-law, to maintain employment for another new period of 6 months, whose calculation begins once the previous ones have finished in their entirety.
And in the slightest case, taking into account that the self-employed have been rescuing their workers from the ERTE and have been deducting time for job maintenance, even with everything, they will find themselves today with a commitment to maintain their workforce of, at least until January next year.
For this reason, if the norm is not modified and months of commitment to maintain employment stop accumulating, sooner or later we will find ourselves with a cascade of Employment Regulation Files (ERE), and many micro-enterprises in bankruptcy. Because breaching this clause is not free. Some employers would have to return to the coffers thousands of euros in exemptions that were granted by each and every one of their workers from the first file they opened, even if they only decide to fire one of their workers.
The self-employed who fire an employee in ERTE will have to return the contributions of all
It should be remembered that the General Directorate of Labor recently clarified one of the most frequent doubts that the self-employed and employers with workers in ERTE have had since the beginning of the pandemic: if a worker is fired, will it be necessary to return only the exemptions from That same employee or those of all those who were affected by the file?
Finally, the Ministry of Labor opted for the harsher interpretation of the rule. As the department itself has been warning, employers who dismiss one of their workers in breach of the commitment to maintain employment for six months will have to return the Social Security contributions that were exonerated by each and every one of the workers included in the file.
The criterion, included in a note from the Labor Inspectorate, states that "all aid regardless of the number of workers affected by the breach of the employment safeguard" must be repaid.
The employment safeguard clause included in the sixth additional provision of Royal Decree-Law 8/2020 warned that "companies that fail to comply with this commitment must repay the entire amount of the contributions from which they were exempted, with the surcharge and interest of corresponding delay. However, it was not known if the aforementioned article referred to "all the contributions" of the dismissed employee or those of all those who were affected.
Now, and after the clarification of Labor, it is already known that the Social Security contributions of each of the workers affected by the ERTE will have to be returned and that they were not paid during all the months that the file was open.
In this way, if the self-employed employer had fired an employee prematurely and had to return, for example, six months of Social Security contributions, in the event that it had affected four workers and paid average contributions for them of 400 euros, the return could amount to almost 10,000 euros, not counting the surcharges.
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