Interruptions of the contract and the disappearance of the essential element of the employment relationship

Judgment 1632/2026 (ECLI:ES:TS:2026:1632) of the Social Chamber of the Supreme Court, issued last March, examines the case of an employee who had worked for the company Administrator of Railway Infrastructures (ADIF) since July 1988. The employment relationship was structured through four fixed-term contracts from July 1988 to October 1995, when the worker moved to a permanent contract. The interruptions between contracts were of '36 days, more than three months, nearly three months and nine months'.

The claimant requested the company to recognize his seniority from July 25, 1988, excluding the periods from March 5, 1989, to June 4, 1989, and from December 20, 1989, to March 17, 1990. However, the company only recognized the claimant's seniority from December 1990.

The ruling of the Superior Court of Justice of Galicia dismissed the worker's claims, a decision which was upheld by the Supreme Court, confirming the appealed ruling.

However, the High Inspection has admitted the appeal for cassation filed by the representatives of the worker, having found a contradiction and grounds for cassation, and recalls the necessary conditions for the application of the doctrine of the essential unit of the employment relationship established by the jurisprudence of the Chamber:

"a) The total time elapsed from the moment when it is intended to establish the beginning of the calculation of seniority, including, where appropriate, the period during which the worker has been contracted by the company with a permanent contract.

b) The volume of work performed during this period.

c) The number and duration of interruptions between contracts.

d) The nature of the productive activity.

e) The existence of contractual anomalies.

f) The relevant provisions contained in the applicable collective agreement.

g) Any other circumstance deemed relevant for these purposes."

The ruling makes an important distinction between temporary employment without fraud and that which involves fraud:

In cases where there is no fraud in successive temporary contracts, the jurisprudence of the Supreme Court has evolved towards a flexible conception of the continuity of the employment relationship, based on the doctrine of the essential unit of the employment relationship. According to this approach, it is not merely the existence of breaks between contracts that is decisive —not even when they exceed the previous thresholds of thirty days—, but their significance within the overall context of the employment relationship. With the surpassing of the rigid criterion of twenty days —historically linked to the limitation period for filing a wrongful dismissal claim—, the analysis shifts towards a qualitative assessment of the concurrent circumstances: the total duration of the relationship, the frequency and duration of interruptions or the functional continuity of the activity. Thus, the current criterion allows for the complete calculation of the service period for seniority purposes, as long as these interruptions do not substantially alter the continuity of the employment relationship, as established by jurisprudence, including rulings from the Supreme Court on October 6, 2021, and September 21, 2017.

In contrast, when fraud is detected in temporary contracts, the interpretative criterion becomes even more favorable to the recognition of job continuity. In these cases, the Supreme Court, in accordance with the jurisprudence of the Court of Justice of the European Union —particularly, the Adeneler ruling of July 4, 2006—, reinforces an interpretation aimed at combating job precariousness, relativizing the scope of contractual interruptions. Therefore, only those interruptions that, by their nature, can really be classified as significant break the essential unit of the employment relationship, thereby raising the significance threshold. This approach has allowed the recognition of continuity even in scenarios with interruptions of several months, as demonstrated by the ruling of the Supreme Court on January 23, 2024 (three months and eighteen days in a five-year period) or the ruling of the Supreme Court on December 9, 2020 (interruptions of up to four months and thirteen days in a ten-year relationship), consolidating an anti-formalist approach that prioritizes the substantive reality of the employment relationship over its mere formal discontinuous configuration.

That said, in the present case, there is no evidence of fraudulent hiring. Likewise, the court considers that the interruption of the employment relationship is not significant. This is inferred from the calculation of the number of days of interruption and the percentage they represent in relation to the total duration of the employment relationship —from the first day of the employment relationship until the day the claim was filed—, concluding that the interruption accounts for only 2.63%.

Therefore, the court rules in favor of the worker, granting his appeal and recognizing his claim for seniority recognition at the company from July 25, 1988, excluding the periods from March 5, 1989, to June 4, 1989, and from December 20, 1989, to March 17, 1990.

Article from the Labour Law section of ECIJA Madrid.