Employment Law Case Update: Lopez v Servicio Madrileno de Salud

In Lόpez v Servicio Madrileño de Salud the European Court of Justice recently ruled that the use of successive fixed-term contracts to cover permanent needs in the Spanish healthcare sector are contrary to EU law.

Ms López, a Spanish national, was employed as a nurse at the University Hospital of Madrid on a fixed-term contract from 5 February 2009 to 31 July 2009 to provide “certain services of a temporary, auxiliary or extraordinary nature”. Her employment was renewed seven times under identical contracts of 3, 6 or 9 months duration. This meant she was employed without interruption from 5 February 2009 to 31 March 2013. The Spanish government then imposed the termination of the employment of occasional staff at the end of the fixed term, including where the employee was reappointed. Ms López was informed shortly before her contract ended that she would be reappointed but that her employment relationship would cease.

Ms López appealed arguing that her successive appointments were not intended to meet a temporary, auxiliary or extraordinary need. Also that the Spanish legislation infringed upon an overriding objective of the European Framework Agreement concerning fixed-term contracts, therefore her employment relationship should be reclassified as permanent.

The ECJ stated that it was up to Member States to implement this overriding objective but the Framework Agreement requires Member States to make provision in their legislation, to help prevent abusive use of fixed-term contracts, for at least one of the following three measures by any means they choose:

1. the national implementing legislation should provide evidence of objective grounds on which the renewal of a fixed-term contract may be justified,
2. a total maximum duration for which such contracts may be concluded successfully
3. or the number of possible renewals permitted for such contracts.

The Spanish legislation does not set limits in respect of duration or renewal. The ECJ acknowledged that temporary replacement of workers to satisfy temporary needs “may” constitute an objective ground. In the public-health sector temporary replacements will be necessary when staff are unavailable and would be justified in circumstances such as sickness absence and maternity leave. However fixed term contacts cannot be renewed for permanent tasks which normally come under the activity of ordinary hospital staff.

For employers, this case highlights the clash between national implementing measures and the provisions of the European Framework Agreement. The ECJ estimated that around 50,000 medical and healthcare posts in Madrid are occupied by temporary staff and some have been providing continuous services for 15 years. Spain and other EU Member States may take steps to set the number of possible renewals permitted for fixed term contracts therefore employers who operate in other EU countries such as Spain need to be aware that this judgment  could result in the law regarding fixed-term contracts changing.

UK legislation - Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 - does limit the number of renewals for fixed term contract and provides that an employee who is continuously employed for 4 years or more on successive fixed-term contracts is automatically deemed to be a permanent employee.

This article is from our weekly Employment Law Newsletter published on 13/01/2017.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.