Fijo discontinuo contract in Spain: rights, call-up and benefit

Every April they call you, every October the season ends and you start again the following year. If you work in hospitality, tourism, farming, education or any activity with peaks, your contract is probably one of those called fijo discontinuo (permanent-discontinuous), and the questions you have are the ones that matter: do I have a contract in the months I do not work? Do I get unemployment benefit? What happens if one year they do not call me?

What it is and how it differs from a temporary contract

Since the 2021 labour reform, the contrato fijo discontinuo is the permanent form of contract for work of a seasonal nature or linked to seasonal productive activities, or for intermittent services with certain, determined or undetermined periods of performance. Article 16 of the Estatuto de los Trabajadores (Workers Statute) regulates it.

The difference from a temporary contract is substantial:

If you worked through a chain of temporary contracts for seasons, converting from temporary to permanent may entitle you to be made permanent.

The call-up: how, when and in what order

The llamamiento (call-up) is the moment when the company calls you to return at the start of the season. The law sets some minimum rules:

• Form: in writing or by a means that leaves a record, such as email, a message or the company’s app. A phone call and nothing more is hard to prove.
• Notice: adequate, according to the collective agreement. The law does not set a number of days, so what counts as “adequate” is what the agreement or the customs of the sector say.
• Order and criteria: set by the collective agreement, normally by seniority, and they must be objective and formal. If the agreement does not regulate it, the company must establish criteria and communicate them.

A practical tip: keep every call-up. WhatsApp messages, emails and screenshots from the company’s app serve as proof of which dates they gave you and when.

Your rights during the season

While you work, you are a worker like any other: salary, holidays, extra pay, contributions, rest periods and the rest of your rights. The Statute adds three specific rules:

1. Seniority for the whole relationship. Your seniority is calculated taking into account the whole duration of the employment relationship, not just the months actually worked. This affects seniority increments (trienios), seniority supplements and the calculation of severance in case of dismissal.
2. The same rights as a permanent worker. They cannot give you worse conditions just because you are a fijo discontinuo, except those justified by the nature of the work.
3. Information on vacancies. Companies must report vacancies for ordinary permanent positions, so that you can apply for them.

Holidays are calculated in proportion to time worked: see how many holiday days you are entitled to by law for the general criteria and check your collective agreement, which may regulate it differently.

Unemployment benefit between seasons

The inactive periods of fijos discontinuos are a legal situation of unemployment, as long as you meet the contribution requirements. This means that, when the season ends, you can apply for the contributory unemployment benefit.

The general requirements are to have contributed at least 360 days in the six years before the legal situation of unemployment, and not to have already used up those contributions on a previous benefit. The duration is calculated with a table based on days contributed:

An example. You work seven months a year as a fijo discontinuo in hospitality and you have completed three full seasons. You have contributed about 630 days in the last six years.

• Days contributed: 540 to 719, the 180-day benefit band.
• In an inactive period of five months (about 150 days), that benefit would cover the whole inactivity and you would have 30 days of entitlement left unused.
• When you go back to work, the benefit is suspended and, in general, resumes in the next inactive period with what is left, plus the new days you contribute.

The details of the calculation, with the regulatory base and the percentages, are in how long you can claim unemployment benefit. And you have to apply for the benefit within the 15 working days after the end of the season.

If they do not call you: it is a dismissal

This is the part that worries people most. If the start of the season arrives, other colleagues are called and you are not, or if the company calls you late or on different conditions, the breach is treated as a dismissal. It is not simply a loss of the contract: you have the right to claim.

Steps:

1. Confirm it is not a mistake. Ask the company in writing when you are due to return and why you have not received the call-up. Keep the reply, or the lack of one.
2. Gather evidence. Screenshots of your previous call-ups, messages from colleagues who have been called with less seniority, the criterion in the collective agreement.
3. Count the deadline. The 20 working-day expiry period starts when you become aware of the breach. Working out that date needs care: if there is a clear message from the company, or the season started without you, note that day.
4. File the conciliation request as soon as possible: how to do it.
5. Apply for unemployment benefit if you are in a legal situation of unemployment.

The type of dismissal declared depends on the case: without cause or proper form, the normal outcome is unfair dismissal (improcedencia), and if fundamental rights are violated, nullity. Severance is calculated on the whole seniority of the relationship, not just the months worked: how to calculate severance for unfair dismissal.

An example of a claim

You have done three seasons at a hotel, starting each 1 April. This year, your colleagues receive the call-up on 15 March; you do not. On 2 April you write an email asking about your return. On 4 April the company replies that “this year we do not need you”.

• Date of awareness: 4 April.
• Deadline: 20 working days from the following day.
• Seniority for severance: from the first contract, not just the months worked.

Since you are in inactivity and have enough contributions, you can also apply for unemployment benefit while you claim.

Common mistakes

• Thinking that without a call-up nothing has happened. It has: it is a dismissal, and the clock is running.
• Not keeping the call-up messages.
• Accepting a “we’ll call you” with no date for weeks.
• Signing a voluntary resignation when the company tells you it is not counting on you. It can end your right to claim and to unemployment benefit.
• Forgetting to apply for unemployment benefit within the 15 working days.
• Confusing it with a temporary contract and believing you have no right to seniority or severance.

Common cases

I have gone from season to season for years on temporary contracts. If you have always done the same work for the same company on chained temporary contracts, your contract perhaps should have been fijo discontinuo from the start. It is a case of temporary-hiring fraud (fraude de ley) that can be claimed; a union or a lawyer can assess it with your contracts and work history (vida laboral).

The company calls me late and the season has already started. A late call-up can be a breach. Reply in writing accepting and ask for the delay to be put on record. If you lose days of work and contributions, you can claim payment for them.

They call me for fewer months or fewer hours than before. The company cannot unilaterally reduce your conditions without following the legal procedures. Ask in writing for the reason and check the collective agreement. A reduction in duration or working hours without cause can be a substantial modification of conditions.

I work for a subcontractor and the contractor changes. Succession under the collective agreement (subrogación) may oblige the new company to keep you on your conditions. Check the sector agreement and do not sign a new contract that takes away your seniority without getting advice.

I am on sick leave when I am due to return. If on the call-up date you are on temporary incapacity, the company must maintain your right and your place in the call-up order. Tell them your situation in writing.

Model letter if they do not call you

Subject: Call-up as a fijo discontinuo worker

Good morning. I have been a fijo discontinuo at the company since [date] in the category of [category]. As of today, I have not received the call-up for the [year] season, while other colleagues with less seniority have already returned. Please let me know my return date and the reason, if any, why I have not been called. Kind regards.

Send it by a means that leaves a record and keep the reply. It is the proof that you claimed and the starting point of the deadline.

Questions that come up often

• Can I work elsewhere during the inactive period? Yes, unless your contract or collective agreement prohibits it (exclusivity or non-competition clause). If you receive unemployment benefit, tell the SEPE (the public employment service).
• Am I paid for the months I do not work? No: there is no salary during inactivity. You receive unemployment benefit if you meet the requirements.
• What about my finiquito (final settlement) when the season ends? There is no termination, so there is no finiquito as such. The pending items for the season, such as unused holidays, are settled according to your collective agreement.
• Can I ask for a leave of absence (excedencia)? Yes, under the terms of the Statute and the collective agreement; see voluntary leave of absence and childcare leave.
• Does each season count towards the probation period? The probation period (periodo de prueba) applies once at the start of the relationship, not at each season.

What I would do

I would keep all the call-ups from the first year and check the collective agreement to know in what order and with how much notice they have to call me. When the season ends, I would book an appointment for unemployment benefit in the first few days. And if one year they do not call me, I would not wait for the “we’ll see”: I would write to the company asking for a written answer, note down the deadline and file the conciliation request. In a fijo discontinuo contract, the proof of the call-up and the deadline are what decide the case.

Where to go next

If your temporary contract chains seasons, see when a temporary contract becomes permanent. For the probation period at the start, the probation period. And to work out what you would receive in an inactive period, how long you can claim unemployment benefit.

If you work a few months while receiving benefit, see working while claiming paro.