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Fixed-term work in Andalusia

December 2011 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Discrimination
The EU Court has ruled that the Fixed-Term Employment Directive may extend to permanent employees in some cases.
Under the Fixed-Term Employment Directive, employers are not allowed to treat their fixed-term employees less favourably than their permanent employees. But does that protection also extend to permanent employees who are treated differentially because they were formerly employed on a fixed-term contract?
A Spanish civil servant had been employed on a fixed-term contract with a public authority in Andalusia from 1989 to 2005. He was then offered permanent employment. In 2007, the public authority informed its employees that it would be holding a number of selection tests to find suitable candidates for promotion. The civil servant took part in the tests and passed. But his good fortune did not last long.
 
Not enough seniority
In early 2009, the public authority found out that the civil servant did not meet the conditions for taking part in the tests. Since he did not have the required educational background, he was required to have 10 years’ seniority as a permanently employed civil servant. He did not have that and his promotion was therefore cancelled.
In the Spanish courts, the civil servant relied on the Fixed-Term Employment Directive. He felt he had been discriminated against in relation to his permanently employed colleagues.
His employer did not believe he had a case. First of all, the civil servant could not rely on the Directive since he was no longer employed on a fixed-term contract. Secondly, there was a time-limit of 2 months for bringing a claim against the employer for not being admitted to the selection tests – and that time-limit had long passed.
 
Directive did apply
The Spanish courts asked the EU Court for guidance. The EU Court started out by establishing that the civil servant could rely on the Fixed-Term Employment Directive – although he was employed on a permanent contract at the time of the alleged discrimination.
The civil servant was therefore entitled to the same treatment as his permanently employed colleagues, unless the differential treatment was justified on objective grounds. One such objective ground could be that he had not been performing the same work as his permanently employed colleagues when he was on a fixed-term contract.
Since the EU Court did not have sufficient information to consider this question, the issue was left to the Spanish courts to decide. However, the EU Court did stress that the temporary nature of fixed-term employment did not in itself constitute an objective ground which could justify the differential treatment.
Finally, the EU Court said that, in principle, the Directive did not prevent Spain from setting a time-limit for bringing a claim against the employer for not being admitted to the selection tests. But such a time-limit would not be enforceable if it made it practically impossible or excessively difficult for citizens to exercise their rights under the Directive.
 
Norrbom Vinding notes:
  • that the ruling shows that the protection against discrimination in the Fixed-Term Employment Directive also applies in situations where the alleged discrimination takes place after the employee is employed on a permanent contract;

  • that the ruling confirms that the “temporary nature” of fixed-term employment is not itself an objective ground that may warrant differential treatment; and

  • that the ruling also underlines that each individual member state is free to lay down procedural rules for taking legal action, but that member states must not make it practically impossible or excessively difficult for citizens to exercise their rights under EU law.
The above does not constitute legal advice and should not be relied upon as such

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