Latest employment developments: restrictions on dismissals, interruption of the duration of temporary contracts, temporary limitation of the ERTE

This Saturday, Royal Decree Law 9/2020 of 27 March was published, which adopts complementary measures, in the field of employment, to mitigate the effects of the COVID-19.

After the publication of Royal Decree-Law 8/2020 on 17th March the government adopted new employment measures to put a stop to massive staffing adjustments and job destruction and with the clear intention of speeding up procedures for access to unemployment and the collection of benefits for workers affected by redundancy procedures.

For these purposes, Article 2 of this Royal Decree indicates that force majeure and the economic, technical, organizational and production causes underpinning the measures to suspend contracts and reduce working hours may not be understood as justifying the termination of the employment contract or the dismissal. Therefore, companies may not carry out dismissals based on such causes while the state of alarm lasts under the risk of being declared inappropriate or even, with reservations, null and void.

With the wording of article 3 and the third additional provision, the Government intends to speed up access to and collection of unemployment benefits by workers when they have been affected by an ERTE linked to the COVID-19.

Thus, the procedure for recognition of contributory unemployment benefit will be initiated by a collective application submitted by the company to the unemployment benefits management body, acting on behalf of the latter. In addition, in order to prove the representation of the workers, a responsible declaration must also be presented, stating that the workers’ authorization has been obtained for its presentation.

This communication must be sent by the company within 5 days from the request for the temporary employment regulation file in the cases of force majeure referred to in article 22 of Royal Decree Law 8/2020, of 17 March, or from the date on which the company notifies the competent Labour Authority of its decision in the case of the procedures regulated in article 23 (ordinary file). The communication shall be sent by electronic means and in the form determined by the Public State Employment Service.

In the event that the request was made prior to the entry into force of this Royal Decree Law, the 5-day period will begin to be calculated from this date.

It also provides, for those companies that do not make the communication, the possibility of applying a sanctioning action qualified as a serious infraction and provided for in article 22.13 of the rewritten text of the Law on Infractions and Sanctions in the Social Order, approved by Royal Legislative Decree 5/2000, of August 4.

For the purpose of establishing the date of effect of the legal situation of unemployment for workers in cases of force majeure, it will be the date of the event causing the same and, in the case of temporary employment regulation proceedings for objective reasons, the date of effect of the legal situation of unemployment will have to be, in any case, coincident with or subsequent to the date on which the company notifies the labour authority of the decision taken.

The cause and date of effect of the legal situation of unemployment must, in any case, appear in the company certificate, which will be considered a valid document for accreditation purposes.

Another measure approved and worthy of comment has been included in Article 5 of the present RD and refers to the suspension of temporary contracts, including training, relief and temporary contracts, for the reasons set out in Articles 22 and 23 of Royal Decree Law 8/2020 (force majeure or suspension and reduction of the working day for economic, technical, organisational and production reasons), which will entail the interruption of the calculation of both the duration of these contracts and the reference periods equivalent to the suspended period, in each of these contractual modalities, with regard to the workers affected by them.

That is to say, and for clarification purposes, those temporary employees, who have had their employment relationship suspended by being included in an ERTE, will see the duration of the temporary nature of their contracts interrupted during the period in which the aforementioned ERTE is extended.

Another interesting point is included in the first additional provision, which establishes that the duration of the files for the regulation of employment due to force majeure cannot extend beyond the period in which the extraordinary situation derived from the COVID-19 is maintained. Furthermore, this limitation will be applicable both to those cases that are expressly resolved and to those that are resolved through administrative silence, regardless of the content of the specific business application. Therefore, the limitation for these types of cases, as well as their tacit approval through positive silence, are finally clarified in view of the numerous doubts expressed in recent weeks by professional labour groups.

Finally, in the second and fourth additional provision, reference is made to the System of Penalties and Reimbursement of Undue Benefits. For this purpose, applications submitted by companies that contain false or incorrect data will give rise to the corresponding sanctions. The conduct of the company consisting of requesting measures in relation to employment that are not necessary or have insufficient connection with the cause that gave rise to them, provided that they result in the generation or receipt of undue benefits, shall also be punishable, in accordance with the provisions of the said regulation.

In such cases, and without prejudice to the administrative or criminal liability that may correspond by law, the company must pay the management body the amounts received by the worker, deducting them from the wages that would have been due, up to the limit of the sum of those wages. Therefore, in cases where the managing body finds evidence of fraud to obtain unemployment benefits, it will notify the Labour and Social Security Inspectorate for the appropriate purposes.

From AddVANTE’s Labour Department we remain at your disposal for further information or to resolve any doubts that may arise in relation to this article.