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Fixed-term contracts to cover permanent needs in the healthcare sector are contrary to EU law. The use of such contracts cannot be justified by the requirement to cover temporary needs

27.09.2016

Fixed-term contracts to cover permanent needs in the healthcare sector are contrary to EU law. The use of such contracts cannot be justified by the requirement to cover temporary needs

The European Court of Justice has pointed out that the framework agreement requires Member States to make provision in their legislation, with a view to preventing abusive use of fixed-term contracts, for at least one of the following three measures by any means they choose: (1) the objective grounds on which renewal of the fixed-term contract may be justified, (2) the total maximum duration for which such contracts may be concluded successively and (3) the number of possible renewals of such contracts.

Ms López was recruited as a nurse at the University Hospital of Madrid from 5 February to 31 July 2009. The reason given for her appointment was to ‘provide certain services of a temporary, auxiliary or extraordinary nature’. The contract of Ms Lopéz was renewed seven times under identically worded fixed-term contracts.

Shortly before her last contract expired in March 2013, the administration informed her that she would be appointed again, even though she had worked without a break in continuity for the hospital between February 2009 and June 2013. Meanwhile, Ms López was informed that her employment relationship would subsequently cease.

Ms López brought an appeal against the decision to terminate her employment relationship. She argued that her successive appointments were not intended to meet an auxiliary or extraordinary need of the health services, but in fact corresponded to a permanent activity. The Administrative Court in Madrid, before which the legal proceedings were brought, has asked the Court of Justice whether the Spanish legislation which allows the renewal of fixed-term contracts in the healthcare sector infringes the framework agreement on fixed-term work.

More specifically, that the court has doubts regarding the objective grounds that could justify the renewal of such contracts. By its judgment today, the Court finds that EU law precludes national legislation which allows the renewal of fixed-term contracts to cover temporary staff needs, when those needs are, in fact, permanent.

Since Spanish legislation does not provide for limits on the duration or the number of renewals of fixed-term contracts, the Court examined whether an objective ground referring to precise and concrete circumstances could justify the successive appointments of Ms López. In that regard, the Court acknowledges that temporary replacement of workers in order to satisfy temporary needs may constitute an objective ground. On the other hand, it considers that those contracts cannot be renewed for fixed and permanent tasks which normally come under the activity of the ordinary hospital staff. The objective ground must be able to specifically justify the requirement to cover temporary needs and not permanent needs.

However, in the case of Ms López, her successive appointments do not appear to relate to simple temporary needs of the employer. Such renewal of fixed-term contracts creates a situation of insecurity which, in view of the structural deficit of regulated staff in the healthcare sector in the Madrid region, does not only affect Ms López. The Court further notes that the Spanish administration is under no obligation to create permanent posts and is permitted to fill posts by hiring temporary staff without limitation either as to the duration of the contracts or the number of their renewals. It follows that the insecure situation of workers is perpetuated. Accordingly, the Court finds that Spanish legislation, by allowing the renewal of fixed-term contracts in order to cover fixed and permanent needs, despite the existence of a structural deficit of posts, infringes the framework agreement.

 Source: CURIA


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