We analyze the rulings of the Spanish Supreme Court on how periods of inactivity in seasonal contracts are counted for seniority bonus, loyalty bonus, professional promotion or severance pay. 

During the not much more than two years in which the reform of Article 16 of the Workers’ Statute regulating seasonal contracts has been in force, carried out by Royal Decree-Law 32/2021, of December 28th, the use of this type of contract has intensified. As a result, the doctrine and case law on the calculation of periods of inactivity has evolved.

The current wording of the second paragraph of section 6 of the mentioned article establishes that “seasonal employees are entitled to have their seniority calculated taking into account the entire duration of the employment relationship and not the time of services actually rendered, with the exception of those conditions that require other treatment in view of their nature and provided that it meets criteria of objectivity, proportionality and transparency”. This was intended to clarify how to calculate the periods of inactivity in this type of contract, but there are still doubts as to the interpretation of the exception included in the provision.

The following is a summary of the answers given by the Supreme Court (considering the wording before and after the reform) in different areas:

  • Seniority bonus. The date of acquisition of the right to the seniority bonus depends exclusively on the duration of the employment relationship and not on the amount of actual work performed during such relationship (i.e., it counts the entire period, regardless of the periods of inactivity), according to the Supreme Court rulings of November 19, 2019, May 19, 2020, June 25, 2020, and December 22, 2022. The most relevant in this regard was the judgment of January 12, 2023, because it meant the consolidation of the current doctrine, in which the Supreme Court established that, “for the purposes of calculating the seniority of seasonal employees, the total period of service rendered must be taken into account and not only the time of actual service rendered, modifying the doctrine that this Chamber had adopted until the CJEU of October 15, 2019, joined cases C-539/18 and 472/18”.
  • Loyalty bonus. The Supreme Court, in its ruling of March 13, 2024, determined that the receipt of a loyalty bonus —an amount determined in a collective bargaining agreement to which the person linked to the company is entitled after a defined period— is conditioned to the permanence in the company, so that to generate the right to its receipt, all the periods of inactivity must be counted. However, to avoid distortion of the award, the judgment makes a distinction between the generation of the right to the award and the amount to be received, accepting the application of the “pro-rata temporis” principle, whereby the amount of the award is received in proportion to the time actually worked (therefore, not counting the periods of inactivity for the calculation of the amount).
  • Professional promotion. The Supreme Court, in the same ruling explained in the previous point, concluded in relation to a contractual clause that provided for the requirement of a certain length of service to be able to participate in internal selection processes, that all the time elapsed since the beginning of the seasonal contract (without discounting periods of inactivity) must be counted. The Supreme Court understands that, if only the period of effective provision of services were counted, it would be especially burdensome and discriminatory for those who have signed seasonal contracts (since it would take them much longer to be promoted internally in the company), generating a violation of their right to promotion at work as provided for in Article 4.2 b) of the Workers’ Statute.
  • Severance pay for termination of the employment relationship. The Supreme Court considered in its ruling of July 30, 2020, that the severance pay for employees with seasonal contracts is calculated by reference to the calendar years in which they have been linked to the company without counting the periods of inactivity. In this ruling, the Supreme Court interprets Article 56.1 of the Workers’ Statute literally, reasoning that the variable referring to the years of service for the calculation of severance pay cannot include periods of inactivity, because such provision expressly establishes that such severance pay amounts to “thirty-three days’ salary per year of service, with periods of less than one year being prorated by months”. During the periods of inactivity, the services required by the law are not rendered. Likewise, the judgment emphasizes that, since the severance payment is extra-salary in nature, the jurisprudential that counts the periods of inactivity for salary and professional promotion purposes would not apply, since this exclusively affects salary payments.

The above judicial rulings refer to specific cases with a specific conventional regulation, but they give a glimpse of the evolution tending to equate seasonal work with “continuous” work, with the exception, for the time being, of severance payments. However, it will be necessary to keep a close eye on how case law (national and EU) continues to develop regarding this type of contract.

Benigno Maújo de Luis Conti