What are the differences between an open-ended contract and a permanent intermittent contract?

One of the main objectives of the labor reform approved in December 2021 is to limit temporary hiring and to promote the open-ended nature of employment relationships between workers and employers.

Under a permanent intermittent contract (contrato fijo discontinuo), the employment relationship is open-ended. This is not the case with a temporary contract: from the moment the worker starts providing services, the temporary worker knows the date on which his or her employment relationship with the employer will end, that is, the end of the contract.

Permanent intermittent worker

This is a worker who is hired on a permanent basis by a company but performs his or her work during specific periods of time (for example, only during the summer months).
It is a very commonly used contract, for example, during sales periods or in the tourism sector.

It is open-ended, unlike fixed-term contracts (contratos de duración determinada), under which the employment relationship is temporary.

Once the work period has ended, this contract is not terminated but rather interrupted until the next period/year.

Worker on an open-ended contract (trabajador indefinido)

This is an employee who has an employment relationship with a company with no time limit. The contract may be entered into on a full-time or part-time basis, or for the provision of permanent intermittent services during a certain season of the year.

In other words, we can say that a permanent intermittent contract is a form of open-ended contract.

The main difference between the two is that the permanent intermittent contract is intermittent in nature, whereas under a continuous open-ended contract the worker performs his or her activity throughout the year.

The permanent intermittent worker does not work all 12 months of the year, but rather provides his or her services during certain seasons/months of the year. By contrast, the norm in an open-ended contractual relationship is for the worker to carry out his or her activity “without breaks” throughout the year.

Open-ended employees work continuously over time, whereas permanent intermittent employees do so intermittently. One of the features common to these two types of contract is that neither has an end date (since both are open-ended).

Differences between an open-ended contract and a permanent intermittent contract.

A permanent intermittent contract is a type of open-ended contract; what sets it apart from a full-time or part-time open-ended contract is its intermittent nature.

Like the other types of open-ended contracts, the permanent intermittent contract is signed for an indefinite period of time, but the work is performed intermittently.

The worker performs his or her duties and, once they are completed, the contract is not terminated but rather interrupted.

The employer will be obliged to call up the permanent intermittent worker once the season for which his or her services are required begins. Call-ups are not usually made to all permanent intermittent workers at the same time, but rather according to the company’s needs, although all companies will have to establish a calendar setting out the expected annual call-ups.

Open-ended employees perform their duties on a continuous basis, whereas the permanent intermittent worker will do so intermittently. However, neither of these contracts will have an end date.

As with full-time or part-time open-ended contracts, the permanent intermittent worker is part of the company’s permanent workforce; that is, although he or she does not provide services all year round, he or she is indeed considered an open-ended employee on the company’s staff.

If the company no longer requires the services of the permanent intermittent worker, it may dismiss the worker by giving him or her 15 days’ notice, and the worker will be entitled to severance of 20 days’ pay per year worked.

However, if the employer does not call up the permanent intermittent worker to perform his or her duties, even if this is due to sick leave for temporary incapacity (incapacidad temporal, IT), the worker may bring a court claim for this breach of contract. The employer is always obliged to call up the permanent intermittent worker, even if the worker is on sick leave for temporary incapacity.

While the contract is suspended between periods of work, the permanent intermittent worker is entitled to receive unemployment benefit.

Given the intermittent nature of the employment relationship, the worker may work for different companies unless the contract includes an exclusivity clause or this could be regarded as unfair competition between the companies.