Following the new Labour Reform, one of the most frequently asked questions by employers is: What type of contract should be formalized for the purpose of substituting a worker on holiday?
First of all, it is necessary to clarify that a holiday replacement contract is of a temporary nature. In this case, a temporary contract has always been used for the duration of the holiday, such as an interim contract. However, since the new Labour Reform was approved, according to the Royal Decree-Law 32/2021 of 28 December, on urgent measures for the labour reform, the law states:
”A fixed-term employment contract may only be formalised due to circumstances of production or due to the substitution of a worker. In order for a justified cause of temporary employment to be understood to exist, it will be necessary to precisely specify, in the contract, the reason for the temporary contract, the specific circumstances that justify it and its connection with the foreseen duration.”
By “production circumstances,” the law refers to the eventual or sporadic increase in work that generates instability between production and the number of jobs.
Therefore, currently, the appropriate contract to cover holidays will be the fixed-term contract due to production circumstances.
It is important not to make a mistake with the temporary replacement contract, as holidays are not included in the justifiable causes of this contract and it would be considered fraudulent, and therefore, illegal.
Aspects to bear in mind:
You have to be very careful with the law, as there are many details that can be overlooked. At GyV Asesores we want you to have all of the information that you need, so we have prepared a summary of the most important things to bear in mind when hiring for holiday replacement.
• The duration of the temporary replacement contract will be determined by the circumstances of production. However, it cannot exceed 6 months.
• Temporary replacement contracts may only be formalised in the case that the worker who is being substituted has the right to return to their post once the contract ends. Or that the employee chooses to work a reduced number of hours, in which case the substitute employee would only complete the remaining working hours.
• If the aforementioned conditions are not met, the company will be obligated to hire the affected employee on an indefinite-term basis.
• Employees hired on a temporary basis will have the same rights as permanent workers.
• The interim contract if used to cover holidays is considered fraudulent.
• The contract cannot specify that the reason for the contract is holiday replacement.
• If all these conditions are not met, the employee may sue for fraudulent employment.
If you have any questions, please do not hesitate to contact us.
