Temporary contracts: New doctrinal criteria
The exceptional nature of fixed-term contracts is becoming increasingly evident in the new doctrinal criteria.
The widespread practice in some sectors of temporary contracts as a common contractual modality has contributed to generate a socially accepted false belief, according to which the exceptional temporary contracting foreseen for the cases listed in Article 15 of the Workers’ Statute has been assumed as a general rule.
It should be remembered that, in our legal system, although an employment contract may be concluded for an indefinite or fixed-term period, the presumption is in favour of the indefinite contract, unless the reasons justifying the temporary nature of the contract are duly accredited.
Our Supreme Court has recently handed down several judgments of interest regarding the interpretation of the justifying causes for fixed-term contracts, as they restrict the cases in which the aforementioned type of contract has been applied.
STS no. 1.137/2020,29 December 2020 – Duration of a contract
In accordance with the aforementioned ruling, the Supreme Court’s doctrine has been rectified and the possibility of formalising a works contract linked to the duration of a contract has been closed. “The fixed duration of the contract is justified by the particularity of the work or service, insofar as it can be clearly defined and delimited with respect to the ordinary or usual volume and, precisely for this reason, it emerges as a prominent and non-permanent element in the rhythm of the company’s activity. None of this can be affirmed when the entire business activity consists, precisely, in developing services for third parties”
STS no. 3833/2020, of 10 November 2020 – Staff coverage
The Supreme Court has unified doctrine by means of the aforementioned Judgment, considering the use of temporary contracts without adequately accrediting the situation of insufficient personnel to have been entered into in fraud of the law.
Specifically, the ruling states that the mere and generic invocation of the need to cover holidays, leaves and leaves of absence of staff, without further specification, is not valid. In order to be valid, more precise and exhaustive proof is required of the concrete and specific circumstances of the staff, the number of jobs and vacancies existing in the same, from which it can be deduced that there are extraordinary circumstances that justify the use of this type of temporary contracting.
The consequence of the consideration of the existence of fraud by law is the qualification of the employment relationship as indefinite.
Both judgments show the trend in favour of the indefinite-term employment relationship, and call for a paradigm shift in the practice of fixed-term contracts. To this end, good advice is essential, in order to identify the existence of justifying factors of the fixed-term relationship, or to analyse the appropriate application of other contractual modalities of indefinite duration, already provided for in our legislation, such as part-time contracts, permanent-discontinuous contracts, as well as the adaptation of working conditions or staffing levels, by means of restructuring measures, in cases where the company’s activity is affected.
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