It was 1996 when the Social Division of the Supreme Court, with the aim of tackling the multitude of fraud committed by certain Public Administrations when hiring temporary staff, created the figure of the indefinite non-fixed term contract. This served, to a certain extent, to adjust the conditions of these workers to the principles of equality, capacity, merit and publicity. However, more than 20 years later, it is still a controversial formula. Here we would like to resolve any doubts you may have about it.

What is a non-regular permanent employee?

First of all, all non-regular permanent employees are public employees, as this type of contract does not exist in private companies. All those workers who, during the provision of their services, have suffered any kind of abuse in terms of their temporary contracting status and claim it in court, are covered by this status.

This is an important point, as a public administration cannot directly hire someone as a non-permanent permanent employee, but it must be a judge who grants this status. To do so, it must be proven that the temporary nature of the contract was excessive or that too many fixed-term contracts have been chained together, for example.

Therefore, the non-regular indefinite-term worker is a worker in a kind of limbo. He or she cannot be considered indefinite or permanent, but neither can he or she be considered temporary.

Requirements to be considered indefinite-term

In addition to the above, a public administration worker can only be considered a non-regular permanent employee if the following circumstances are met:

• Existence of a structural need not officially recognised by the Public Administration but which has been covered by fraudulent temporary appointments and contracts: in this case, the judge will oblige the public body to create the corresponding position and to link the non-regular permanent employee to it.
• Occupation of a vacant and structurally recognised post for more than 3 years: the judge will link the worker directly to the existing post in his sentence.

The dismissal of non-regular permanent employees

Unlike permanent employees in the public administration, non-regular permanent employees can be dismissed from their post. However, unlike interim or temporary staff, there are very specific conditions that must be met in order to do so.

Cases in which a non-regular indefinite-term employee may be dismissed

Redundancy of the position occupied by the non-regular permanent employee: the Public Administration for which the employee works must demonstrate, objectively, that the structural need for which he/she was hired has definitively disappeared and that, therefore, his/her services are no longer indispensable. It is very difficult for this to happen, at least within a short period of time after the court ruling, as it should be considered that such a need existed.

• Definitive filling of the position occupied by the non-permanent indefinite period worker: the body puts the position occupied by the non-permanent indefinite period worker out to competition or competitive examination and, after its completion, there is another candidate who outperforms him/her in marks. This scenario is also very difficult to occur, since the Public Administration must guarantee the right of the non-regular permanent employee to be able to obtain a permanent position and, in addition, he/she will be able to use the points obtained for his/her experience in the position.
• In addition, among the rights contemplated for non-regular indefinite-term workers, there are two other very interesting rights that ensure their continuity in the post. Specifically, these workers cannot be dismissed by a permanent employee of the Administration who wants to reach that post through a process of internal promotion or a transfer competition. Either of these cases will result in the dismissal being null and void.

Severance pay for the termination of a non-regular indefinite-term employee

If any of the conditions established for the legal termination of a non-regular permanent employee are met, he/she will be entitled to receive compensation. This is set, according to the ruling of the Social Division of the Supreme Court of 28 March 2017, at 20 days' salary per year worked, with a maximum of 12 monthly payments.

Can a non-regular permanent employee change position after acquiring this status as a worker in the public administration?

The answer is no. The judge recognises the worker's right to occupy the post for as long as necessary due to the existence of a structural need. However, this is a right exclusively linked to that specific post. Therefore, even if there are vacancies in other positions, he/she will not be able to occupy them and maintain his/her status as a non-permanent permanent employee.

Can a civil servant or statutory worker be converted into a non-permanent permanent employee?

It is not the most common thing to do but, based on various court rulings, we must say yes. However, this does not mean that they will be converted into a permanent employee or that they will have to abide by the provisions of the Workers' Statute or the corresponding collective bargaining agreement, but rather that they will continue to be bound by the civil service regulations.

In which court should the application for the acquisition of permanent status be filed?

It depends on the case. If the claim is made by a worker who is part of the employment staff of a public administration, he/she must file his/her claim with the administrative court of the municipality in which he/she resides. On the other hand, if you are a civil servant or statutory personnel, you will have to do so in the Social Court.

On the other hand, if this problem affects more than one worker within the same public administration body, they can file a joint claim. The only requirement is that members of the labour staff and statutory or civil servant staff do not do so in this way.

After the lawsuit has been filed, can the public administration retaliate against the worker?

Under no circumstances. In fact, this would violate the fundamental right to effective judicial protection provided for in Article 24 of the Spanish Constitution. The worker would only have to bring the action taken by the Administration to the attention of the judge for it to be automatically declared null and void.

Conclusions

In short, the situation of non-regular permanent workers in the public administration may seem somewhat delicate at first glance. However, they are very well protected in judicial terms and have a good guarantee of being able to keep the post they occupy when there is a competitive examination process to fill it. Moreover, if one compares their rights with those of the rest of the labour staff, it is clear that they enjoy greater protection as they are considered to have previously been victims of labour abuse in terms of temporariness.