The Supreme Court explains that the special COVID regulations are not intended to generate a different and more extensive right than that contemplated in the Social Security Law.
The Supreme Court in its ruling of November 16, 2023 has ruled that the periods of ERTE by COVID cannot be computed for the purpose of receiving a new unemployment benefit. The Court explains that the special COVID regulations do not intend to generate a different and more extensive right than the one contemplated in the Social Security Law.
We would like to inform you of an important ruling of November 16, 2023 of the Supreme Court (SC) which has determined that the period of receipt of unemployment benefits as a result of the suspension of the employment contract in ERTE COVID-19 due to force majeure cannot be computed for the purpose of receiving a new unemployment benefit.
Taking into account that article 269 of the General Social Security Law (LGSS) states that the contributions that the managing entity or, as the case may be, the company is obliged to make during the receipt of unemployment benefits cannot be computed for the purpose of generating a new period of benefits, it is necessary to determine whether the special rules issued to regulate the unemployment benefit derived from the COVID-19 have introduced some kind of exception to this general rule.
The special COVID regulation (Royal Decree Law 8/2020) “does not introduce a new rule from which it could be derived that this type of unemployment generates more benefits than those provided for in general, to the point that it must be understood as having paid unemployment contributions and allows a new benefit period to be earned”.
This special law is not intended to generate a different and more extensive right than that contemplated in the LGSS, but to maintain for the worker the same legal status recognized in the ordinary regulations, despite the absence of employer contributions in the period of COVID unemployment benefit.
The ruling states that there is nothing to prevent the possibility of generating periods of unemployment by the mere fact of the contribution, not accompanied by the effective performance of an occupation with contributions, but these exceptional situations must be expressly contemplated in the law.
He stresses that “if this had been the will of the legislator with the enactment of the legal regulation under analysis, it would have been expressly stated”. Since the special regulations do not contemplate this right, the Chamber concludes that the general rule of the LGSS, which excludes this possibility, is applicable.
In this regard, it explains that the article of the General Social Security Law (LGSS) that regulates this matter states that, for a given unemployment benefit, contributions that have already been computed for the recognition of a previous right cannot be taken into account, nor can those made by the managing entity or, if applicable, the company, during the time corresponding to the payment of the benefit be computed.
It recalls that the only case expressly exempted from this general rule is that of benefits recognized by virtue of the suspension of the employment relationship due to gender violence.
The SC has dismissed the appeal for the unification of doctrine filed by an employee of a hotel who was included in a suspensive ERTE because of the pandemic. After being dismissed, she sued the State Public Employment Service (SPEE) because she did not agree with the number of days recognized by this body for the collection of unemployment benefits. In its resolution, it ruled that the 660 days recognized were correct because the periods in a situation of ERE could not be considered for the payment of a future benefit. The Madrid Social Court No. 6 and the High Court of Justice confirmed the administrative resolution, as has now been confirmed by the Supreme Court.
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