The National Court has recognised the right of workers to start the five-day paid leave when they wish to care for a family member due to a serious illness or hospitalisation, “depending on their possibilities of conciliation and as long as the causal fact persists”.
The court ruled in favour of the unions CCOO, UGT and CSIF against the insurer RACE, which required that the leave had to start coinciding with the day of the causal event (for example, with a hospitalisation or the onset of an illness).
Concretely, the permit recognizes “five days for an accident or serious illness, hospitalization or surgical intervention without hospitalization that requires rest at home of the spouse, cohabitant or relatives up to the second degree by consanguinity or affinity, including the blood relative of the couple, as well as any other person other than those above, who lives with the worker in the same accommodation and who requires effective care of the worker”, details article 37.3 b) of the Workers’ Statute.
Flexibility in favor of the worker
The ruling, dated September 12 and presided over by Judge Francisco Javier Piñonosa, establishes that there must be flexibility in favor of the worker to benefit from this permit, which was expanded during the last legislature. “The characteristics and purpose of the permit require the possibility of an adjustment in the period in which such a causal event occurs,” he considers.
The judges also recall that “the general rule is that if the day on which the causal event occurs is not a working day, family leave only begins on the first following working day, since it is granted to enjoy working days. “Well, during the holidays, it is not necessary to request them because there is no work.”
Furthermore, when the collective agreement does not regulate the system of enjoyment of paid leave, “the general rule of enjoyment during actual working days must be applied, excluding rest days, public holidays and non-working days”, adds the judgment.
“The interpretation made by the company must be considered as unjustifiably restricting or limiting the enjoyment of the permit in question, because it is a general principle of law that where the norm does not make a distinction, the interpreter must not make a distinction, especially when it comes to restricting the rights it establishes,” the judges say.
Interpretation in favor of equality
The magistrates also add an argument with a gender perspective to reject the company’s thesis, according to which the permits could only start by coinciding with the beginning of the causal event.
They point out that the permits are intended to “provide more opportunities to remain in the labour market for men and women with care responsibilities for family members”. And, at this point, there is a sociological factor: leave related to care for family members and cohabitants is exercised mainly by women.
Thus, this restrictive interpretation of the company “is contrary to the aforementioned principle of real equality, because it only perpetuates the so-called “gender gap in work”, since it implies that the group that traditionally assumes care sees its rights diminished for this reason. “At the same time, it discourages men from assuming the duty of co-responsibility for family responsibilities”, states the judgment.
