Until recently, it was clear and
consolidated case law of the Labor Division of the Supreme Court that temporary
contracts are inadequate to cover cases in which employment is interrupted–such
as leave, breaks, public holidays and vacation–because these are not cases of
suspension of the employment contract with the right to return to the same job.
However, the Supreme Court left
the door half open for the use of temporary contracts for these purposes,
provided that the cause of recruitment is validly recorded (identification of
the circumstances surrounding leave or breaks given to specific workers), and
the increase in the company’s production needs is justified, with stances found
in many judgments of the high courts of justice.
Now, with this new judgment, dated October 30, 2019 (Rec. 1070/2017), the Supreme Court wants to close off this
alternative widely used by companies to balance their workforce when faced with
organizational imbalances caused by such breaks.
In particular, the court firmly
states that it is unacceptable to cover this type of break through a seasonal
contract, and it must be proved, among other elements covered in article 15.1
b) Workers Statute, whether unforeseeable circumstances arise.
The court considers that the
company is fully aware of its workforce, of their breaks taken as scheduled (as
in the case of vacations) and that, therefore, this circumstance is totally
predictable, which excludes temporary coverage through seasonal contracts.
This judgment creates uncertainty
regarding whether the option of covering such breaks with seasonal contracts
has now been ruled out definitively, or whether it can be maintained when
circumstances are not foreseeable, i.e., in a much more residual capacity.
In short, it seems that the
Supreme Court wanted to strike another blow to temporary employment, banning a
widespread practice by companies, which will undoubtedly lead to organizational
challenges, in addition to the legal consequences arising as a result of
inappropriate temporary recruitment practices.
The challenge now for many companies will be to
articulate a legally valid response to temporary labor requirements resulting
from permanent staff members taking vacation and being on leave. If temporary
employment is generally ruled out, HR departments must develop alternative
formulas that allow for a similar degree of flexibility and cost control.
