The Supreme Court has taken a key turn in the long-standing debate on the temporary employment in the public sectorAfter years of claims and European rulings, the Social Chamber has made it clear that chaining together temporary contracts, in and of itself, It doesn't open the door to a permanent position. unless a selection process based on equality, merit and ability has been completed beforehand.
The new ruling marks a turning point for hundreds of thousands of temporary public sector employees. The Supreme Court only recognizes permanent employment in one very specific case and, in all other cases, opts for a temporary contract. enhanced compensation and sanctions against the administrations who have abused temporary employment contracts, in line with the requirements of the Court of Justice of the European Union (CJEU).
What exactly has the Supreme Court decided regarding temporary workers?
The full Social Chamber has established criteria on when the abuse of temporary contracts in the public sector can lead to a permanent employment relationship. The central idea is that The fixity cannot be automatic for any worker who has spent years linking temporary contracts in an administration.
According to the Supreme Court's reasoning, making all temporary employees who have suffered abuse permanent, without any further requirements, It would clash head-on with the Constitution and with the Basic Statute of Public Employees (EBEP). Both texts require that access to public employment be governed by the principles of equality, merit and ability, which implies going through an open competitive bidding process.
The ruling, which even includes a dissenting opinion but establishes a precedent for the Court, reiterates that irregular temporary employment, even if widespread and prolonged, cannot become a stable parallel access route to the Administration for those who have never passed a selection test.
The Supreme Court also emphasizes that a generalized conversion of all fraudulent contracts into permanent ones Ā«would not deter"It would not only prevent administrations from continuing to use temporary contracts abusively, but would also consolidate a path to becoming permanent by skipping the ordinary procedures."
Who can transition from temporary to permanent status according to the new doctrine
The ruling does not completely close the door to job security, but it severely limits it. The Supreme Court establishes that only in a specific case It is appropriate to transform the temporary relationship into a permanent one: when the worker has already demonstrated their ability in an opposition or selection process for indefinite employment.
In summary, the High Court indicates that those who meet these cumulative conditions may acquire permanent status:
- Having participated in a selection test for the hiring of permanent staff in the Administration.
- Having overcome that process (that is, having passed) but being left without a place because the number of eligible applicants was higher than the vacancies offered.
- Having subscribed after fixed-term contracts with the same Administration.
- That a abuse of temporary employment, chaining contracts for an unjustifiably long period.
In these cases, the Court understands that it is not "contra legem" to convert the temporary contract into a permanent employment relationshipbecause the person has already undergone a process aligned with the principles of equality, merit, and ability. Furthermore, the extension of the temporary contract demonstrates that there is a structural staffing needs that the Administration is covering inadequately.
The doctrine has been applied, for example, to the case of a worker who had passed a competitive examination, did not obtain an initial position, and, after years of successive temporary contracts in a public body, was the victim of a clear abuse of temporary employment. In her specific case, the Supreme Court declared that her relationship was already one of fixed character.
This interpretation represents an "intermediate solution": there is no automatic mass regularization, but it does open the door to permanent employment for a very specific group of temporary workers who approved at the time and he narrowly missed out on getting a place.
What happens to temporary workers who have never passed a competitive exam?
The most delicate issue, and the one that affects a much larger number of people, is that of the public employees who have never passed a competitive examination or the selection process for permanent employment. For them, the Supreme Court is unequivocal: the mere accumulation of years of temporary contracts, even under conditions of obvious abuse, does not entitle you to a permanent position.
In other words, a temporary or contract worker who has spent years on a series of temporary contracts at a government department, hospital, or city council without having previously passed a competitive examination for permanent employment cannot become a permanent employee solely based on that history of temporary work. Permanent employment That's not the general answer. to abuse for those who have not gone through a regular access procedure.
This does not mean that the abuse goes unpunished. The Supreme Court reiterates that the Administration cannot use temporary contracts indefinitely and without objective cause. Therefore, the ruling outlines other types of responses: enhanced compensation and the intervention of the Labor and Social Security Inspection when a judge declares that there has been fraudulent use of temporary contracts.
In practice, the Supreme Court's decision frustrates the expectations of thousands of workers who were confident of achieving direct permanent employment after having been appointed on a series of temporary contracts for years, but at the same time it leaves open the possibility of filing a claim. significant financial compensation and to demand accountability from employing administrations.
Compensation: two compatible forms of compensation for abuse of temporary employment
Following the guidelines set by the CJEU, the Supreme Court maintains that the redress of the abuse must go beyond the traditional compensation for dismissal (20 or 33 days per year worked, capped at 12 or 24 months' salary). It understands that these amounts, by themselves, they are not always enough nor are they truly dissuasive for the Administration.
The ruling establishes that, when an employment relationship is terminated in which abuse of temporary contracts has been found, the worker has the right to two separate and independent compensationswhich are compatible with each other:
- Termination compensation: the one corresponding to the termination of the contract according to national regulations (for example, 20 days of salary per year worked with a maximum of 12 monthly payments in many cases).
- Additional compensation for abuse of temporary employment: an extra compensation that must repair both the material and moral damage resulting from having worked for years in a situation of job insecurity.
For this second compensation, the Court takes as a reference the Law on Infringements and Sanctions in the Social Order (LISOS) and establishes a "minimum presumptive compensation" in a range of between 1.000 and 10.000 euros, similar to the ranges of sanctions for fraudulent use of temporary contracts.
However, the court acknowledges that this amount may be even higher if the worker proves greater harm. In such cases, the affected person must demonstrate the specific damage suffered (loss of opportunities, reduced career progression, economic and personal impactā¦), assuming the burden of proof.
In addition to financial compensation, the Supreme Court insists that judges who detect abuse must refer the case to the Work inspection so that it opens the corresponding sanctioning file against the administration involved, thus reinforcing the deterrent nature of the system.
The support and warnings of the Court of Justice of the EU
The Supreme Court's decision does not come in a vacuum. It is based on several previous rulings. Court of Justice of the European Union, which has been questioning for years how Spain manages temporary employment in the public sector and the lack of effective measures to prevent and punish its abuse.
Back in June 2021, the CJEU warned that Spanish regulations allowed the renewal of temporary contracts in the public administration without setting a fixed completion date of the selection processes, and without providing for either conversion to a permanent non-tenured position or adequate compensation. The case of a worker at the Madrid Institute for Agricultural and Food Research and Development (IMIDRA), who had a series of contracts from 2003 to 2016 and saw her position finally awarded to a permanent employee, was one of the most frequently cited examples.
Following that ruling, the Supreme Court itself rectified its doctrine on temporary contracts for vacant positions in the public sector and established that, in general, a duration exceeding three years should be considered unjustifiably long, which would lead to the recognition of the condition of indefinite non-fixed.
More recently, on April 14, the CJEU reiterated that Spanish measures against abusive temporary employment They do not fully comply with EU law. He criticized the fact that severance payments, as currently structured (20 or 33 days per year with limits), do not guarantee full compensation or a real deterrent effect against public administrations.
In that rulingāknown in the media as the Obadal caseāthe European court recalled that compensation must take into account not only the economic damage, but also the moral damage stemming from years of uncertainty and instability, and which must be effective, proportionate and dissuasive.
A structural temporary nature that affects hundreds of thousands of workers
The impact of this doctrine is potentially enormous. In the Spanish public sector, the temporary employment rate hovers around one 32%This means that one in three employees works on temporary contracts. Autonomous communities and municipalities have the most precarious workforces, especially in health, education and local government.
Various union sources estimate that around 800.000 public employees They remain in temporary employment, although there is no official, detailed census that would allow us to know precisely how many are temporary civil servants, how many are temporary staff, teachers, or healthcare workers. Other figures put the number of people who have gone through a series of fixed-term contracts in public administrations at over one million.
Organizations such as CCOO and UGT point out that, after years of warnings from Brussels, Spain committed to drastically reducing temporary employment. In 2021, the government launched a crash plan with the aim of lowering the rate to 8% in 2024, incorporating these goals into the Recovery Plan agreed with the European Commission.
Although hundreds of thousands of jobs have been made permanent, the reality is that temporary employment remains far above targets and affects women, who are overrepresented in the workforce, particularly severely. part-time contractstemporary relationships and jobs of less than one year.
Government position and division of opinion within the Supreme Court itself
Following the latest European setback and before the new doctrine was known in detail, the Government had already argued that Union Law It does not require permanent positions. automatically applies to all temporary public sector workers. The Supreme Court ruling supports this approach, but also requires a more forceful approach to addressing the culture of temporary employment.
The Social Chamber itself points out that it is the legislator who must introduce clearer and more effective reforms to comply with clause five of the European Framework Agreement on fixed-term work, establishing individual responsibilities and truly punitive and deterrent measures for those who perpetuate the abuse.
The resolution was not unanimous. There is a dissenting opinion that emphasizes that the EBEP (Basic Statute of Public Employment) allows for the selection of permanent staff through systems of merit-based competition without an opposition phaseTherefore, the principles of equality, merit, and ability are not exhausted by the traditional examination. This judge disagrees with an overly restrictive interpretation that equates merit and ability solely with passing a competitive examination.
Meanwhile, the major unions point out that, for the moment, the ruling mainly affects the labor staff dependent on the administrations, although many jurists predict that the Administrative Court will adopt a similar line in the future regarding interim civil servants.
With this new ruling, the conflict over temporary employment in the Spanish Administration enters a different phase: the fixity is restricted Those who passed a selection process and then suffered abuse, and the rest of the temporary staff, should focus their claims on reinforced compensation and on demanding that the administrations put an end to years of structural precarity.
