Discontinuous fixed contract. When and how is it applied?

When the labor reform of 2022 was carried out, the intermittent fixed contract arrived, which replaced other contractual modalities.

The new discontinuous fixed contract is one of the main tools of the reform to end temporary employment. It is an indefinite contract that covers seasonal services on a stable basis and guarantees rights very similar to those of people who are employed continuously.

We detail the characteristics and explain when and how it is applied.

Type of contract

The discontinuous fixed employment contract is an indefinite contract but with periods of inactivity. This means that the worker does not work continuously throughout the year, but in specific periods determined by the company.

Discontinuous activity

There is no time limit of inactivity during the calendar year for discontinuous fixed. However, in the case of activities that extend over ten months in a calendar year and, therefore, with a period of inactivity of one month, the existence of an ordinary indefinite employment relationship could be appreciated, resulting in an improper perception of the unemployment benefit, which is used as a means of not recognizing the right to paid holidays.

Therefore, we recommend that there is at least a minimum period of inactivity of 90 days to avoid reviews by the Labor Inspectorate.

Working day

These workers are hired full-time. The intermittent fixed contract can only be formalized on a part-time basis when authorized by the sectoral collective agreement in view of the peculiarities of the sector's activity (Employee Statute article 16.5).

Rights and obligations

Intermittent permanent workers have the same rights as regular permanent workers during periods of activity. This includes rights such as pay, working hours, holidays, social security and other employment benefits.

Periods of inactivity

During periods of inactivity, the employee does not work for the company, but maintains the employment link. These periods can be predictable and repetitive every year according to the needs of the company.

Reincorporation

When the activity resumes, the company is obliged to call the intermittent fixed worker to rejoin the workplace. The reinstatement order may be regulated by collective agreements or specific agreements.

The call must be made in writing or by another means that allows to record the due notification to the interested person, with the precise indications of the conditions of their incorporation and with adequate notice.

When should the call be made? When you start the activity. In case of conflict, it must be called on those dates when it was usually called. If it was the first call, the starting point will be the day you were hired.

What happens if we don't call the worker? The worker is considered to have been dismissed and therefore the worker can claim against the company. The worker's action will give the right to claim the maximum compensation of 33 days per year worked. The worker will have 20 days to claim for dismissal as soon as he knows that he will not be called.

When the worker does not join, the employment relationship will be considered extinguished by resignation.

Unemployment benefits

During periods of inactivity, intermittent permanent workers may be entitled to receive unemployment benefits, provided they meet the requirements established by legislation.

If you need more information, do not hesitate to contact DATA AND SERVICES