The Supreme Court has established jurisprudence and has indicated that, for the purposes of calculating the previous services in the Administration of discontinuous permanent workers, the entire duration of the employment relationship must be taken into account, including the periods in which they have not There was effective work. In a ruling dated March 6 to which Efe has had access, the contentious chamber has rejected an appeal by the Treasury against a ruling by the Superior Court of Justice of Madrid (TSJM) of October 2022 that ruled in favor of a worker.
The TSJM recognized the right of the worker to have seniority computed in his employment relationship prior to his acquisition of the status of public official for calendar years both for economic purposes (recognition of trienniums) and for professional promotion, including periods of time between calls in which there was no effective provision of services.
The Supreme Court clarifies it in its ruling
What the Supreme Court has clarified is whether in the Public Administration previous services provided through a discontinuous permanent employment contract can be recognized, taking only into account the time of effective services provided, or the periods of time between calls must also be added in those in which there was no provision of effective services.
On the other hand, the Supreme Court recognizes that the law speaks of “effective” services, so those that do not have this character cannot be recognized as prior services in the Administration, although certain considerations apply to this.
The first of them is that no Spanish norm can be interpreted and applied contrary to what is established by European law, which recognizes the discontinuous permanent worker the entire time of the employment relationship as time of previous services.
On the other hand, a certain period of past time “does not acquire or lose” the status of previous services due to the fact that the person who now requests it is a full-time or fixed-time employee, especially the magistrates.
Likewise, even leaving aside community legislation, when a person who has worked full-time for the Administration – as interim statutory staff or as labor staff – acquires the status of public official, the recognition of their previous services in the Administration covers ” “The whole time of that relationship”, including those periods in which there has been no real and effective work, such as vacations or sick leave.
A “more rigorous” interpretation of the legal provision cannot be applied to discontinuous permanent employees, counting only the days actually worked, and it cannot be considered, as the State’s lawyer claims, that the opposite discriminates against full-time employees.
The Supreme Court itself has already ruled on this on some occasions, and demonstrated that “it is not appropriate to understand that discontinuous permanent workers (…) are computed, for the purposes of economic rights and professional promotion, only the time actually worked, but the entire working time of the employment relationship must be taken into account.” The ruling specifies that the ruling does not affect labor personnel who provide services sporadically or are integrated into a job bank.
