Spain: The National High Court has been pronounced on the calculation and enjoyment of paid leaves
The National High Court has ruled, in four sentences, on the way of computation and the enjoyment of family paid leaves, collected both in article 37 of the Worker’s Statute (WS) and collective agreements. In the judgment of the Supreme Court of February 13, 2018, it is concluded that paid family leave must begin on the first business day from the cause, since in the non-working days the worker does not need any permission. For this reason it acknowledges that the paid leave must begin on the first working day after the causing event. However, the National High Court finds that the ruling does not pronounce about what happens on non-working days that occur during the paid leave.
The regulation on family-related paid leaves contained in the respective collective agreements and in the article 37.3 WS, distinguish between long-term paid leaves, such as marriage, which are recognized for 15 calendar days, without specifying at what moment the right is activated, and short paid leaves (births, serious illness, accident, hospitalization or surgical intervention without hospitalization, which need home rest and death of relatives), which are recognized for days, without specifying either when the right is activated.
It is considered that the legal distinction between calendar days and working days, recognized for long and short paid leaves, has great legal relevance and reveals that the legislator wanted to give a different treatment to both types of paid leaves. That is to say, the mention of calendar days necessarily implies that the calculation includes working days and non-working days. Similarly, it happens with the annual vacations, which are also recognized by natural days. On the contrary, the mention of planned days for short-term paid leaves must be interpreted necessarily as working days, since, if the intention of the legislator were to equalize the two paid leaves, he would also have used the term natural days.
Long paid leave. As in holidays, calendar days must be chosen in order to make the calculation, which include all the non-working days that occur during the period of permission, and therefore the leave is activated from the day of the causing event and not from the first business day, because these paid leaves correspond to natural days and not to work days.
Short paid leave. The days of leave are working days, since its purpose is to attend to the multiple contingencies that may arise from the foreseen assumptions, which cannot normally be performed on non-working days, so it is reasonable to activate the right on the first working day since the causing event has occur.
The court declares the right of workers to the fact that on the day of the calculation of the paid leaves for family reasons, when the event giving rise to the paid leave happens on a non-working day, for the worker begins on the next working day; except for the marriage leave, in which the paid leave must begin on the day of the causing event, whether it is a working day or a non-working day.
