What Counts as Length of Service When an Employment Contract Is Interrupted

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Written by Josep Conesa

Employment and insolvency lawyer

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Criteria to consider when assessing seniority in a succession of interrupted contracts:

The overall duration of the period under examination must be taken into account when weighing all relevant circumstances, which may include, among others:

• whether the company rehires the individual for the same duties and in the same role.
• the total time elapsed from the point at which the start of the calculation period is sought to be established,
• the volume of activity carried out within that period,
• the number and duration of the breaks,
• continuity of the productive activity,
• the existence of contractual irregularities,
• the terms of the collective bargaining agreement
• and, in general, any other factor considered relevant for these purposes.

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The doctrine of the essential unity of the contractual relationship

The doctrine of the essential unity of the contractual relationship determines whether an employment contract has genuinely been terminated, even where there have been breaks in continuity over a period of time.

The ruling of the Supreme Court 4178/2020, of 02/12/2020, addresses a case in which there was a break of six months and six days between various fixed-term public-sector contracts and a contract for a specific work or service, also concluded in abuse of law.

This ruling establishes that the threshold for assessing breaks between contracts must be applied more flexibly, since a stricter approach would otherwise reward and facilitate fraudulent conduct.

Similarly, the Supreme Court ruling 5419/2016, of 08/11/2016, also establishes that the key question is determining what constitutes a "significant" break sufficient to exclude the "essential unity" of the employment relationship 

The Supreme Court ruling 1575/2016, of 23/02/2016, likewise confirms this doctrine of essential unity of the employment relationship in a case involving a five-year working relationship that was interrupted for 60 calendar days (43 working days), even where the employee received unemployment benefit during that period. What matters to the court is whether the interruption is significant, regardless of whether the contracts were fixed-term or permanent.

Finally, the Supreme Court ruling 3583/2017, of 21/09/2015, provides a comprehensive summary of this body of case law by establishing that the duration of gaps between successive contracts should not be assessed with strict arithmetical precision. This ruling references an earlier Supreme Court ruling 5372/2010, of 12/07/2010, in which, where an employment relationship was interrupted for six months, the court declined to apply a mathematical approach when assessing whether the employment link had been broken, and did not treat the three-month threshold as a universal benchmark for determining such a break.