Limits to functional mobility in the replacement contract

The Supreme Court authorises the possibility of performing functions other than those performed by the person replaced in an interim contract.

According to STS no. 1195/2021 of 1 December, the performance of functions different from those carried out by the replaced worker is in accordance with the law and not a case of fraud in hiring. According to the proven facts, the ruling refers to a worker who signed an interim contract for substitution, as she performed services different from those performed by the substituted worker. In this context, the judgment under appeal upheld the unfairness of the dismissal, on the grounds that there had been fraud in the hiring, as the substitute worker had taken up a job that did not previously exist, and was therefore performing different functions to those for which she had been hired.

On the contrary, the Supreme Court held that, both for the interim contract for substitution and for the interim contract for vacancy, the fact that the substitute worker did not go on to occupy the same position and functions as the substituted worker did not imply a breach of the contractual requirements, since this did not determine the breach of the interim nature of the contract. It went on to argue that it was entirely reasonable and legitimate for the specific duties performed by the employee being replaced to be entrusted during his absence to another employee of the company, who could perform them more adequately than the interim employee, the latter going on to perform duties that did not coincide with those of the employee being replaced, provided that the job, which was the object of the replacement, was fully identified.

In the same sense, the High Court understood that, if the temporary replacement was fully compatible with the substitute worker’s right to promotion or professional career, it was also lawful for the substitute to be assigned work within his or her professional group or subgroup, in the same way that the substituted worker could have been assigned work. Having said that, the SC concluded that interim substitution did not prevent the use of the functional mobility provided for in article 39 ET.

That is so, inasmuch as that mobility could have been applied in the same way to the replaced worker. Therefore, given that the interim worker replaces the worker with the right to reserve in all respects, it cannot be accepted that the interim contract for substitution is fulfilled only when the original working conditions of the replaced worker are petrified.