The Supreme Court has established that interim non-permanent public sector employees can only become permanent workers if they have previously passed a selection process for a permanent position, even if they did not obtain it due to a lack of vacancies. The ruling, dated May 11 and released this Tuesday, unifies doctrine on a conflict affecting thousands of temporary employees in administrations.
The decision comes after the Court of Justice of the European Union questioned in March the Spanish system that converts interim workers with chained temporary contracts into permanent non-fixed employees. Therein lies the tension of the ruling. Luxembourg questioned whether this formula compensates for the abuse of temporality, but the Supreme Court rejects that the automatic response could be permanence without having first passed an access procedure adjusted to equality, merit, and capacity.
The Supreme Court limits permanence to those who approved a permanent position without obtaining a vacancy
The full bench of the Social Chamber holds that abusive temporary hiring is not enough on its own to acquire permanent status. The court understands that recognizing it without a prior selection process would clash with the Constitution and the Basic Statute of Public Employees.
The exception that the ruling does admit affects those who passed a selection process for permanent staff, but were left out due to an excess of suitable candidates and, afterwards, continued to chain temporary contracts in a situation of abuse. In that case, the Supreme Court does consider conversion to permanent status.
The magistrates add that the reparation of the abuse must be directed against whoever allowed that irregular hiring and not to burden the public treasury with its effects. As reparation measures, the ruling points to compensation adjusted to the criteria of the Court of Justice of the European Union and the referral of the judicial decision that declares the abuse.
The ruling is based on six contracts since 2016 in a public educational center
The case that has served to unify doctrine corresponds to a worker who chained six temporary contracts since March 2016 as a children's caregiver in a public educational center of the Community of Madrid. After the consultation raised to the European court, her employment relationship is declared permanent.
That detail does not modify the general criterion that the Supreme Court now sets for future litigation. The court distinguishes between the response to the specific case and the rule applicable to abusive temporary hiring in the public sector.
Rafael Antonio López Parada, magistrate of the Supreme Court, signs a partially dissenting separate vote. He maintains that the Basic Statute of Public Employees allows for the selection of permanent staff through merit-based competitions without an opposition phase, therefore the principles of access should not be linked solely to passing exams.
The doctrine unification ruling that sets that criterion was dated May 11 and was made public this Tuesday.