Among the different types of hiring, we find the figure of the fixed-discontinuous employment agreement, which appears with the Labor Reform articulated by Decree-Law 32/2021.
This modality is used in those cases in which permanent workers are employed, but for reasons of activity, personnel will not be needed throughout the year, but in recurring and intermittent periods of time.
Article 16 of the Workers’ Statute (Estatuto de los Trabajadores, ET) indicates in which cases we can use this contract:
- For seasonal work or work related to seasonal productive activities
- For intermittent services, even if they are not of this nature
- For services within the framework of the execution of commercial or administrative contracts that, being foreseeable, are part of the ordinary activity of the company.
Although no maximum or minimum duration of the activity is established, the definition of this contract must be taken into account and, if the duration were 365 continuous days, it would be understood that the requirements of this contract are not met, and the worker could demand its conversion into an ordinary indefinite-term employment agreement.
Companies are obliged to call fixed-discontinuous workers once the activity in which they are engaged has been resumed.
In case that the company does not make the call-up and there is no justified cause, it will be considered unfair dismissal, and the worker may request the corresponding severance payments.
How should this call be made?
The Workers’ Statute indicates that the call must be made in writing or by another means that allows to record the notification of the call with the precise indications and conditions of the incorporation of the person concerned.
The term established for calling these workers is set forth in the collective bargaining agreement. Failing this, it is established that notice must be given reasonably in advance, which is understood to be between 2 and 5 days.
Although the Workers’ Statute does not establish the obligation to attend the call, once notified, the worker is obliged to return to the job. If the worker does not do so and does not justify it, it will be understood that he/she voluntarily resigns from his/her job and the reason for the Social Security leave must be modified so that neither permanence nor contribution is generated.
With the resumption of the activity, the company must process the registration of these workers in the Social Security respecting the seniority of the starting date of the fixed-discontinuous contract, calculating for the seniority all the duration of the labor relationship and not only the time of services rendered.
The severance payments purposes, only the periods in which there has been activity will be considered.
The call must be communicated to the SEPE through the Transmisión de comunicaciones de períodos de actividad del mecanismo RED, informing the date of restart of activity of each worker, as well as the expected date of termination of the present contract and the identifier of the contract registered in the SEPE (contrat@).
