European justice qualifies its doctrine and does not see discrimination in labor legislation

The 'Diego Porras' sentence remains in force for indefinite temporary periods, or interim ones in fraud of law

The Court of Justice of the European Union (CJEU) changes the line followed until now regarding the right of temporary workers to compensation equal to that of permanent workers at the end of their contract. In a ruling made public last week in the 'Montero Mateos' case, it corrects the doctrine established in the 'De Diego Porras' case, which led to the recognition in the courts of 20 days per year worked for interim personnel who ceased due to " objective causes", and endorses Spanish labor legislation that generally rules out the compensation of interim employees at the time of dismissal, despite having been carrying out permanent staff functions for years.

The decision of the European Court today introduces a nuance to this doctrine, declaring that it is not possible to compare an interim contract with another indefinite one, and therefore, it concludes that there are objective reasons that support differential treatment in terms of their right to compensation to the end the employment relationship. The news comes at a complicated time, in which a reform is being processed that must integrate the decisions of the European court into our labor legislation and in which public administrations are in a process of staff stabilization.

For Ignacio del Fraile, lawyer at Gómez Acebo & Pombo, the Court of Justice of the European Union has today issued "a relevant ruling that rectifies its previous criteria maintained in the famous 'De Diego Porras' resolution." In its opinion, the court concludes that Spanish regulations regarding the termination of interim contracts are not contrary to European Law. In this sense, the labor lawyer emphasizes, "the Court endorses the Spanish regulations that establish that interim workers do not have the right to receive any type of compensation at the end of their contract due to the expiration of the planned term."

For his part, Cesar Navarro, Labor partner at CMS Albiñana & Suárez de Lezo, considers that with this ruling the CJEU changes the well-known 'Diego Porras' doctrine, in the sense that "it understands that compensation for objective dismissal responds to a circumstance that does not occur in the case of the termination of an interim contract: the unpredictability of the loss of the job. As Navarro explains, "the ruling argues that a permanent worker has expectations of continuity and stability in the employment relationship that an interim worker does not have, who knows the event that will determine his or her term." This shows that, "as the president of the CJEU himself recognized, the court did not correctly understand the problem raised in the preliminary question in the Diego Porras case, which shows the importance of clearly raising the preliminary questions for a correct understanding by part of the CJEU.

In Navarro's opinion, "this ruling closes the door to claims for compensation of 20 days of salary per year of service for the termination of interim contracts (which can even be extended to other fixed-term contracts) provided that "the temporary employment contract is lawful and its termination corresponds to the expiration of the term that justified its formalization."

Vacancy coverage

The preliminary question was raised by the Social Court No. 33 of Madrid, in relation to the interim contract of a hospitality assistant who worked on an interim basis in a residence for the elderly managed by the Madrid Social Care Agency of the Ministry of Social and Family Policies of the Autonomous Community of Madrid. The worker sued the organization when she lost her job, after ten years, when her position was awarded to the person selected through a hiring procedure.

In accordance with section c) of article 49.1 of the Workers' Statute, whose last reform occurred in 2012, in the event that the contract is terminated due to expiration of the agreed time or completion of the work or service that is the object of the contract, in the case of the interim contract and training contracts, the worker does not have the right to compensation, which in other cases is equivalent to the proportional part of the amount that would result from paying twelve days of salary for each year of service. That is to say, Spanish labor legislation denies compensation to interim workers, establishing 12 days for temporary workers and 20 days per year worked for permanent workers.

Non-comparable situations

In stating the issue, the Madrid judge observes that, while workers dismissed for objective reasons – whether their contract is for an indefinite period or of an indefinite duration – are granted compensation equivalent to 20 days of salary per year worked, when The interim contract comes to an end and the worker does not receive any compensation.

In his opinion, this constitutes a difference in treatment. In his writing he alleges the aforementioned CJEU ruling 'De Diego Porras', which led the Spanish courts to grant the same compensation that is granted to workers with a permanent contract to interim workers when they performed similar tasks, with the consequent repercussions for the market. of work.

It remained unresolved whether this rule was applicable to all temporary workers of the Administration. That is to say, it did not answer the question of whether this situation (in which the contract ended due to unforeseeable objective causes, included in article 52 of the Workers' Statute) was comparable with that of those who sign an interim contract knowing its limited duration.

In his opinion, this fact could justify the granting of different compensation, but it also indicates that the filling of the interim position by the candidate selected in a competition constitutes an objective organizational cause of the company, which cannot be attributed to the worker. In this context, it raises a question to the European Court of Justice, highlighting the fact that both situations entail economic damage for the worker, and that it could be unjustified to compensate this damage only in some cases, when in neither case is the termination of the employment relationship attributable to the worker.

For these reasons, it asks the Court of Justice whether the Framework Agreement on Fixed-Term Work must be interpreted as meaning that the termination of an interim contract, concluded to fill a vacant post, upon expiry of the period agreed upon when it was concluded by the employee and the worker, justifies that the national legislator does not grant him any compensation, while a comparable permanent worker dismissed for an objective reason enjoys compensation of 20 days of salary per year worked.

In its ruling, the CJEU declares that Spanish regulations are compatible with the Framework Agreement on temporary work and that it does not discriminate against temporary workers with respect to permanent or permanent staff. As established, there is an objective reason that supports the difference in treatment in both cases regarding the granting of compensation at the end of the contract. The worker who signs a temporary contract is aware of the limitations of his employment relationship, while the dismissal of a permanent worker at the request of the employer for unforeseen reasons must be compensated.

Check for fraud

The court of justice adds, however, that, in this specific case, the worker could not know, at the time her interim contract was concluded, the exact date on which the position she occupied would be permanently filled by virtue of of said contract, nor knowing that said contract would have an unusually long duration. However, his contract ended due to the disappearance of the cause that had justified its conclusion. Therefore, the judge judging the matter must examine whether, due to the unpredictability of the end of the contract and its unusually long duration, it should be reclassified as a permanent contract.

RELEASE CONTRACT

The European Court of Justice has made the communication of the ruling in the 'Montero Mateos' case coincide with another case in which discriminatory treatment in labor legislation was claimed. The Superior Court of Justice of Galicia raised its doubts about the figure of the relief contract, contained in the Workers' Statute. This contract involves the hiring of a worker to cover the workday left vacant by a worker who partially retires.

While permanent or temporary workers who are dismissed for "objective causes" (unforeseen and normally dependent on the will of the employer) are granted compensation of 20 days per year worked, the concept of termination is applied to these workers. of the contract due to "objective circumstances" and are compensated with 12 days.

The CJEU declares that this type of contract is also compatible with the Framework Agreement on fixed-term work, which appears in the annex to Directive 1999/70. The reason that justifies the difference in treatment is that the parties to a temporary employment contract (relief or interim) "know, from the moment of its conclusion, the date or event that determines its end."

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