The Spanish Supreme Court (the ‘Supreme Court’) has confirmed that the employment relationship between a temporary employee and its employer may not be broken by a break in service of as long as three and a half months between two fixed-term employment contracts.
While it is not the first time that the Supreme Court considered this matter, this judgment appears to extend the period of any break between temporary contracts that will not constitute a break in continuity of employment.
This judgement states that the use of fixed-term employment contracts for a single employee, which are successive but interrupted by a significant break or gap, will not alter the employee’s length of service for purposes of dismissal (eg, when considering salary or rights), because it is understood that a single labour relationship exists.
The Supreme Court noted that such an interruption may not be ‘significant’ once the following are taken into account:
- The ‘duration of the interruptions between successive contracts must not be considered with arithmetic precision’. Instead the gap must be considered in the context of the employment relationship as a whole. This will include a comparison between the length of any break(s) in services and the employee’s length of service.
- The court must also take into account the reason for the way in which the fixed term contracts have been structured – was there a legitimate purpose for the gap or were they structured with a view to limiting employment rights?
The Supreme Court intends with this judgement to avoid setting a time limit from which an employee can be safely hired again through a fixed-term employment contract, avoiding the risk of having their seniority from their first contract taken into account.
This latest judgement continues with the recent case law that intends to avoid the abuse in the use of fixed- term employment contracts.
Written by Maria Cristos, Associate, Herbert Smith Freehills LLP
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.