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Elena Esparza and César Navarro
In a recent judgment, the Supreme Court settled an issue concerning whether a vacancy left by an employee after being assigned to another position can be covered by a temporary replacement interim contract or if such contract should be deemed as tortious.
The situation that gave rise to this judgment involved an employee who entered into an employment agreement with the defending company under a temporary replacement interim contract. The contract was to cover a vacancy left by an employee assigned to a role within the same company. After completing the assigned, the original employee was permitted to return to their former position.
In this specific matter, the employment contract held by the employee who was replaced by the claimant had not been suspended. Rather, their position was being substituted while they continued as an active employee within the defending company.
Due to these circumstances, the claimant filed a claim to have their employment relationship with the company considered permanent. The Labour Court of Madrid rejected this claim and acquitted the defendant of all charges made by the claimant.
Dissatisfied with the Labour Court judgment, the claimant appealed to the Supreme Court of Madrid, who partially accepted the appeal and stated that the claimant should be considered as a permanent employee holding a non-permanent position. This hybrid position is particular to the Spanish government (such as the one held by the claimant) and is known as trabajadora indefinida no fija (non-fixed permanent worker). The Supreme Court reached this conclusion as it determined that a temporary replacement interim contract requires the suspension of the employment contract held by the employee whose post is being replaced. Therefore, in the current matter, as the employment contract of the employee being replaced had not been suspended, the interim contract should be deemed as irregular.
Finally, both parties filed an appeal to the Supreme Court to unify conflicting case law.
In the subsequent judgment, the Supreme Court stated that the relevant aspect of a temporary replacement interim contract is that "the replaced employee ceases to provide services in the role that he/she had been undertaking and that he/she does so while maintaining the right to return to this post".
Therefore, the Supreme Court understood that, in the present matter, such a temporary replacement interim contract is acceptable because it fulfils its purpose, which is to substitute an employee who is entitled to return to their post.
This shows that an interim contract does not only cover cases where an employment relationship has been suspended, but where the employee maintains an entitlement to return to the post. Therefore, an employee's contract does not need to be suspended for their role to be covered by a replacement employee under an interim contract.
Considering the above, the Supreme Court concluded that the replaced employee could continue working in the same company and retain their right to return to their post and that, in the interim, their vacancy could be filled by another person.
