Can I charge for the unemployment if I receive an termination indemnified at the worker's will?

The relationship between the compensation for dismissal or termination of contract and the right to receive the unemployment benefit; or «unemployment»This is an important issue for many workers. The question whether a person who receives compensation for termination of contract at his / her will can access unemployment is recurrent, and the answer is not always that simple.

The context of the termination compensation provided by the worker

When a worker decides to terminate his employment contract on a voluntary basis, he is normally not entitled to unemployment. This is because the Spanish labour regulations provide that unemployment benefits are an economic compensation granted to workers who have lost their jobs unintentionally. However, there are certain exceptions that may change this rule.

In particular, termination compensated for the worker's will refers to the situation in which the worker decides to terminate his employment contract but receives compensation, which can happen in several situations, such as:

1. Mutual agreement between the parties: When the worker and the company come to an agreement to end the employment relationship, the worker receives an agreed compensation.
2. Termination of the contract for objective reasons: In this case, the company decides to terminate the contract for economic, organizational or production reasons, and the worker accepts the termination in exchange for compensation.
3. Unappropriate dismissal: Even if the worker decides to terminate the contract, he is sometimes compensated for what is considered an inappropriate dismissal.

In all these cases, the worker may receive compensation for the termination of his contract, but Do you have the right to charge unemployment?

The relationship between compensation and the right to unemployment

The key is how the termination of the contract is classified and whether the worker's departure is considered voluntary or involuntary for the purposes of the unemployment benefit.

1. Voluntary termination of contract: If the worker decides unilaterally and without any pressure to end his or her working relationship, he or she is considered to be in a «voluntary unemployment situation». In this case, would not have the right to receive unemployment, regardless of the compensation received.
2. Extinction with agreement and compensation: If, on the contrary, the termination of the contract occurs by agreement between the two parties and the worker receives compensation, this may influence his right to unemployment. In general, the consensual extinction is not considered a voluntary decreasebut rather a situation of mutual agreement, which opens up the possibility of access to the unemployment benefit, as the worker is not considered to have caused his own unemployment situation.
3. Dismissal or extinction for objective causes: If the worker signs the termination of the contract for objective reasons (for example, for restructuring or financial problems of the company) and receives compensation, this situation will also not be considered voluntary, and in principle, have the right to receive unemployment. The compensation would not affect this right, since what matters is that the dismissal or termination was not caused by the worker's decision.

Relevant legislation and case law

The legislation governing these situations is mainly the General Social Security Act (Royal Legislative Decree 8 / 2015 of 30 October)Article 207 provides that workers are entitled to unemployment benefit if the termination of the contract is involuntary. However, where dismissal or termination is voluntary, according to article 267 of the same Act, the worker is not entitled to benefit.

The Jurisprudence It has been clear in this regard. In a number of judgments, it has been found that if a worker terminates his contract on grounds of force majeure, or if the company makes an inappropriate dismissal that the worker decides to accept in exchange for compensation, the employment relationship is considered to be terminated by reasons beyond the worker's control, allowing him the right to unemployment benefit.

For example, in Supreme Court judgement of 18 June 2018, it was established that where there is an agreement between the parties for the termination of the contract and compensation is paid, if the circumstances of the case do not constitute a voluntary loss, the worker maintains the right of access to unemployment.

Conclusion

In short, the right to receive unemployment if you receive compensation for termination of contract depends on the circumstances in which such termination occurs. If the worker's departure is voluntary and does not respond to an objective cause or to an inappropriate dismissal, he is likely to be unable to access unemployment. However, if the termination is the result of an agreement or dismissal not caused by the worker, the right to unemployment benefit could be maintained, regardless of the compensation received.

Sources:

• General Social Security Act, Royal Legislative Decree 8 / 2015.
• Judgment of the Supreme Court of 18 June 2018.
• Public Employment Services (SEPE).