Seniority Applicable to Staffing Services Contract in Spain
This article first explains of what the staffing services contract consists, and then it assesses how seniority applies to indemnification in this type of contract.
Article 6 of Law 14/1994, of June 1, 1994, on the regulations of temporary work agencies (“ETT”) defines the staffing services contract. The Law regulates the contract between temporary work agencies and user companies that aim to obtain the assignment of a worker to provide services to the user company while the company retains the power of direction.
For the user company to enter into this type of contract with a temporary work agency, it is necessary to consider Article 15 of the Spanish Workers’ Statute. The available and most commonly used contracts include the following types:
- To perform work or a service.
- When necessary to meet circumstantial market demands, backlog, or excess orders.
- To replace workers of the company who have the right to return to their job position (for example, childcare leave).
The contract itself sets its duration.
However, workers are permanent employees of the user company when they have provided their services to a user company or group of companies for more than 24 months during a 30-month period with or without interruption for the same or different job position using two or more temporary contracts within the same or different types of fixed-term contracts.
Similarly, once the duration specified in the contract finishes, workers who initially provide their services to a user company through a staffing services contract will be directly incorporated into the staff of the user company (with or without the elapsing of the 24 months). Additionally, the period during which the worker provided services under the staffing services contract will count towards seniority and therefore indemnification.
In this regard, in its April 16, 2012 decision, the Spanish Supreme Court determined that “the seniority of a worker in a particular company is nothing more than the time that the worker has been providing services to the employer without interruption. Although such lending of labour activity occurred under different contracts of different classes, including temporary services, it fits within the recommended principle of regularity.”
This type of contract is very useful for companies in the above circumstances that need to use temporary work agencies to fill vacancies or strengthen their staff at specific times.
In any case, the period in which the worker has provided his or her services to the user company will count towards seniority and therefore indemnification. Given that the Spanish Workers’ Statute will consider the “years of service” to calculate indemnification – both in cases of objective and unfair dismissal – the type of contract under which the worker provided services will not be decisive in any case.
Monika Bertram
