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COVID ERTE - What To Do If Confirmed, But Not Received?

Although the responsibility for the application for the ERTE regulation and providing the correct data for the employees lies with the employer, employees should take legal steps to claim what is rightfully theirs if the legal windows have passed. Just in case the delay could be as a result of negligence from the side of the employer or the Employment Agency.

What should you do if your employer has applied for an ERTE and has confirmed that it has been approved, your Vida Laboral shows your contract has been ‘suspendido’ as of the start-date of the ERTE, but you haven’t received anything yet?

The ‘reclamación previa’/prior claim is regulated in art. 71 of the LJS (law that regulates social jurisdiction). It establishes that if you want to claim against the Administration in matters of Social Security benefits, before going to court, you must file an administrative appeal or a prior claim. For these purposes, SEPE benefits are considered Social Security benefits and, therefore, before filing a lawsuit, it is mandatory to file a prior administrative claim.

From the SEPE website: “If you do not agree with the resolution approving your unemployment benefit application or with the denial, you may file a ‘reclamación previa’ with the State Public Employment Service (SEPE), within thirty days (‘habiles’, so not counting weekends or national holidays) from notification of the resolution the requested benefit, if it was express, or since three months have elapsed since the request was submitted without receiving notification of the resolution, it being understood then that it has been denied due to administrative silence.

You must submit the claim in writing. It will state your name and surnames, your personal identification, the address for the purposes of notifications (if different from the one provided in the application for the benefit), the act that is appealed and the reason for its challenge, as well as the place, the date, its signature and the organ, centre or administrative unit to which said claim is addressed.

You may accompany the ‘reclamación previa/prior claim with the documentation it deems appropriate to better defend your interests. (Copy from the confirmation of the ERTE application from your employer or copy of your Vida Laboral.)

The SEPE must answer the claim within forty-five days. If this period elapses without an express resolution, the claim will be considered dismissed due to administrative silence. In this case, if you want to file a ‘demanda’/complaint before the Social Court, you have a period of thirty days from the day your claim is understood to be denied due to administrative silence.”

But do I have to go to the SEPE Provincial Directorate to deliver the document?
No. As with allegations, you can file the ‘reclamación previa’ at the same SEPE benefits office in your locality and they are in charge of sending it. It can also be presented at any Single Window Registry (normally in the Autonomous Communities, Town Hall, etc.) or by administrative mail (although in this case it carries a cost).

If it comes to filing a ‘demanda’ before the Social Court, we recommend asking a workers’ union for assistance. CCOO and UGT are big unions in Spain, you can find a listing of offices on their respective websites. You don’t have to be a member to ask for their help, but they might ask for a small contribution.

Keep in mind that in the judicial process you can only allege the issues that you have already alleged before the SEPE and not any new ones, so it is convenient that the ‘reclamación previa/prior claim is as complete as possible. If you are not confident or fluent in Spanish, we recommend asking a gestor or ‘asesor laboral’ for assistance as there is no standard form available on the SEPE website to help with this.

Link to previous article on delays with ERTEs

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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