The Supreme Court has made it clear that workers with an indefinite part-time contract and concentrated hours cannot collect unemployment benefits during their periods of inactivity, even if the company has included them in an ERTE due to force majeure derived from Covid. The key, as the ruling explains, is that in those months there is no real loss of salary caused by the suspension, since the worker was not receiving remuneration in that period.
The ruling STS 676/2026 (available at this link to the Judiciary) analyzes the case of an Air Europa cabin crew with indefinite contract part-time and concentrated work in certain months of the year. The worker provided 100% services in the active part of the year, but remained registered with Social Security throughout the year, also in the months without activity, in which she did not receive a salary. After the ERTE approved during the pandemic, the SEPE approved him to collect unemployment, but after a review asked him to return 4,590.20 euros because it understood that it had been received improperly.
The worker decided to go to court and the Superior Court of Justice of Madrid ruled her in favor, so she did have the right to collect unemployment also in those months of inactivity due to being included in the ERTE Covid. Even so, the SEPE appealed to the Supreme Court and the High Court ended up correcting that criterion.
There must be an effective loss of salary
The ruling explains that this type of contract is not the same as that of a discontinuous permanent worker. The Supreme Court recalls that these employees carry out their activity in specific months of the year and that, outside of that time, they remain inactive, “in which they do not receive remuneration, even though they are registered and contributing to Social Security during both periods.”
The court says that according to article 262.2 of the General Social Security Law, it establishes that total unemployment exists when the worker “ceases, temporarily or definitively, in the activity he had been carrying out and is consequently deprived of his salary.” Furthermore, article 263.2 specifies that the contributory level of unemployment seeks to replace “salary income lost” due to loss of employment or suspension of the contract.
With this basis, the Supreme Court ends by saying that during the months of inactivity this legal situation of unemployment does not exist. It says it expressly: “to be entitled to unemployment benefits due to suspension of the contract, there must be a cessation of activity with the deprivation of the corresponding salary.” And he adds that, in this case, “the suspension of the contract does not affect the remuneration during the period of inactivity”, so the plaintiff “is not legally unemployed.”
In addition, it points out that “workers with an indefinite part-time contract and concentrated hours, during the period of inactivity, lack the right to benefit from unemployment benefits derived from a Covid ERTE due to force majeure.”