Last Updated on March 28, 2024 by Bruno Bianchi
Question
Can former Auxiliares de Conversación, who were in the program for over three years and may have irregular status, potentially file for arraigo laboral based on the recent ruling that establishes their position as a working relationship? Looking for insights, especially from legal professionals in the group.
Answers
These are the answers of some Facebook group members:
”I don’t think it’s retroactive or else we would have to look as early as the 2000s”
”I’m super surprised this didn’t get any replies! I guess the best way is to contact a lawyer directly”
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Start the Moving to Spain Hub →The Spainguru Community perspective
According to Spainguru Facebook group members, in response to the recent ruling recognizing the working relationship of former Auxiliares de Conversación, there were varied opinions on the potential retroactivity of this recognition for those with over three years of service and irregular status.
Some express uncertainty, while others suggest consulting a lawyer for personalized advice. The limited responses highlight the need for individualized legal counsel to navigate the complexities of filing for arraigo laboral in this evolving legal landscape.
Andalusian Language Assistants: From Scholarships to Recognized Employment
The article discusses the situation of language assistants in bilingual schools in Andalusia, Spain. These assistants, often foreigners, are paid 800 euros monthly as a subsidy and are not considered part of the staff but rather as a type of scholarship holder. However, the Labor Inspection and the High Court of Justice of Andalusia (TSJA) have challenged this arrangement, ruling that it constitutes a formal employment relationship.
In a decision dated September 13, 2023, the TSJA dismissed an appeal by the Andalusian Education Council against a previous judgment that recognized the employment nature of the relationship between the Council and a language assistant who was dismissed. This decision was based on a report by the Labor Inspection of Granada, which interviewed 125 language assistants and concluded that there indeed was an employment relationship.
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Explore Cities →The ruling stated that the remuneration could not be considered a scholarship since the main activity of the assistants was not their own training but providing services under the control and direction of the school, particularly regarding schedules and class attendance.
The case in question involved a language assistant selected for the 2020/21 academic year, who was assigned to IES Alhama in Granada. The assistant had requested telework due to pregnancy and COVID-19 risks but was later dismissed and removed from social security registration.
The initial judgment by the Social Court, dated June 29, 2022, declared the employment relationship as indefinite and non-fixed, and the dismissal as null, ordering the immediate reinstatement of the worker with back pay.
The TSJA’s ruling confirmed the lower court’s decision, referencing Supreme Court rulings that for an activity to be considered a scholarship, it must align with the primary goal of enhancing the trainee’s education. The TSJA noted that language assistants could hardly learn Spanish language and culture if they are required to communicate in their native language with students.
Furthermore, the TSJA highlighted instances where assistants substituted teachers during classes, as per the guidelines issued by the Ministry of Education and Vocational Training.
The TSJA’s decision, along with previous judgments from courts in Andalusia, Madrid, Navarre, and the Canary Islands, recognized the employment relationship between educational administration and language assistants. Despite these rulings, these assistants continue to work for the Education Council in exchange for a subsidy, which for the 2023-24 academic year, remains at 800 euros.
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