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Compatibility of unemployment benefits with the start of a self-employment activity

compatibilización de la prestacion por desempleo con alta como autonomo

When a natural person decides to stop working as an employee and become self-employed, many doubts and uncertainties may arise. Our legal system contemplates a series of facilities that can be of great help during the first months of activity, as is the case with the possibility of compatibility of unemployment benefits with the start of a self-employed activity.

Law 31/2015, of September 9 contemplates, in addition to the compatibility of unemployment with self-employment, the possibility of capitalizing unemployment benefit, although in this article we will limit ourselves to commenting on the details of the first of the possibilities, regulated in its Article 33.

Specifically, Law 31/2015 allows the compatibilization of the monthly unemployment benefit with the start of a self-employment activity for a maximum period of 270 days (9 months) or for the lesser time pending to be received in the event that the worker has previously exhausted his or her benefit.

There are basically two requirements:

  • The application must be made to the managing entity (SEPE) within a maximum period of 15 days from the beginning of the self-employed activity.
  • The total and definitive cessation of the employment activity.

The second of the established requirements, although apparently clear according to the literal wording of Article 33 of Law 31/2015, is interpreted restrictively by the SEPE, since it considers that, in the event that the worker has initiated a legal claim for dismissal against his former company, the granting of the compatibility of the unemployment benefit with the start of a self-employed activity is not applicable.

This interpretation, which entails the automatic denial of compatibility, is part of the criteria and instructions that the managing entity has sent to all its offices.

In our opinion, this criterion is, to say the least, debatable, since the SEPE considers that the judicial claim does not imply the total and definitive cessation of the work activity.

Turning to case law, we find numerous cases in which the interpretation of the law by the Courts is radically contrary to that of the SEPE, based on both literal and systematic criteria.

For all of them, we can cite Judgment 200/2018, of March 1, of the High Court of Justice of the Canary Islands in which it is stated that.

“If to the firm dismissal without readmission were referred, the expression of should not be to the labor activity but to the firm extinction of the labor relationship.

(…)

And to this end, he understands that if the legislator’s intention had been to wait for the termination of the dismissal procedure, this would have been stated as it is in Article 34 of Law 20/2007 for the lump sum unemployment benefit. If the worker, or the legal representatives of the workers in the case of collective dismissal, had contested the termination of the employment relationship giving rise to the unemployment benefit, the application must be made after the resolution of the corresponding procedure”.

Therefore, the Courts are recognizing such compatibility in cases in which there is a legal claim against the dismissal, since the legislator has not established any other provision to the contrary, as is the case with the capitalization of the benefit.

In view of the foregoing, the following cases of exclusion must always be taken into account:

  • That the applicant’s last employment was self-employment.
  • That the applicant has made use of this right or has obtained the capitalization of the benefit in the 24 months immediately preceding.
  • The applicant (as a self-employed person) must sign a contract for the performance of his/her professional activity with the employer he/she worked for immediately prior to the beginning of his/her unemployment situation, or a company of the same group.

At Portillo Estudio Legal we advise you on the steps prior to the application for compatibility and, in case of denial, on all the administrative and judicial actions that may be necessary to carry out for the recognition of the compatibility of the unemployment benefit with the start of a self-employment activity.