In a judgment delivered on Wednesday 25 July 25 in Case C-96/17, the Court of Justice of the European Union (CJEU) held that under the terms of the framework agreement on fixed-term work, the Spanish public sector does not automatically have to reinstate a non-permanent worker in a case of unfair dismissal.
Ms Gardenia Vernaza Ayovi was a nurse for a Terrassa-based health consortium in Spain under a full-time, non-permanent employment contract. After having been granted leave for personal reasons, she refused to be reinstated at the consortium on the grounds that it was part-time work. She was dismissed on disciplinary grounds in July 2016 for failing to turn up at work.
The dismissed individual appealed to the Employment Tribunal on the grounds of unfair dismissal. If the court finds in her favour, her employer will have to either reinstate her or pay her maximum legal compensation.
Spanish rules distinguish between permanent workers employed by the public services and non-permanent workers. The former must be reinstated by the public services if unfair dismissal is proven because of the intrinsic characteristics of the national public services that imply a certain stability of employment.
Non-permanent workers do not have to be reinstated in the case of unfair dismissal, but can receive compensation since they are covered by a non-permanent or temporary permanent contract.
The Spanish courts asked the CJEU whether the Spanish legislation complied with European law, particularly the framework agreement on fixed-term work dating from March 1999 (and annexed to the 1999/70 / EC directive).
The Court answers in the affirmative. It recognises the specific characteristics of a national public service (impartiality, efficiency and independence), which therefore implies stability of employment. As a result, the CJEU holds that unequal treatment of permanent and non-permanent workers in the Spanish public sector is justified. (Original version in French by Pascal Hansens)