In a judgment delivered on 13 July 2021,(1) the Supreme Court had to determine whether an employee should be considered an active employee registered with the Social Security Office, when they had not been reinstated after a period of voluntary leave.

In the case at hand, an employee was not admitted back into the company after the leave period, so she filed a claim to challenge the decision, which was ultimately settled and recognised as a wrongful dismissal.

Subsequently, she applied for unemployment benefits with the State Employment Service (SEPE), which was denied on the grounds that she was not registered as an employee.

Dissatisfied with this decision, she filed a social security claim before Labour Court No. 4 of Madrid, which issued a judgment that dismissed the claim and acquitted the SEPE.

Unhappy with the Court's judgment, she filed an appeal. The High Court of Justice of Madrid upheld the appeal and confirmed the employee's right to receive unemployment benefits on the basis that, in accordance with article 267 of the General Social Security Act (LGSS), employees whose work contract is terminated by the company shall be considered unemployed. Further, the High Court clarified that "[t]he fact that the company did not register the employee with the Social Security Office cannot be detrimental to her".

The SEPE filed an appeal to the Supreme Court for the unification of doctrine. The Supreme Court considered that the reviewed case was analogous to that of any person who has been dismissed and who is entitled to receive unemployment benefits starting from the date of dismissal. Consequently, the employee, who had not been reinstated, should have been registered with the Social Security Office on the date of the company's refusal to reinstate her.

Considering the above, the Supreme Court concluded that the company had been obliged to register the employee when it had recognised the unfairness of the dismissal and, therefore, the company's failure to comply with this obligation could not be detrimental to the employee.

The Supreme Court found that the requirement contained in article 266(a) of the LGSS, which requires those who request unemployment benefits to be previously registered, had been fulfilled despite the fact that the company did not comply with its obligations.

Therefore, the Supreme Court upheld the employee's claim and dismissed the appeal filed by the SEPE, thereby confirming the High Court's judgment.

For further information on this topic please contact César Navarro or Carmen Bardi at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] or [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at


(1) ECLI: ES: TS: 2021:2924.