Spain: Supreme Court declares that the enjoyment of the marriage leave must begin the first business day after the marriage
The union representation of the temporary agency workers filed a collective claim to the Labor Chamber of the National Court. In this claim was requested that the collective agreement be interpreted in relation to the calculation of certain paid leaves in the way that, when the event causing the leave occur on a non-business day, the calculation begins on the first following business day. The National Court partially upheld the claim, recognizing this right with respect to certain leaves, but not in the case of the paid leave of 15 calendar days for marriage celebrated on a non-business day.
While the employers’ organization considers that the agreement doesn’t mention the dies a quo, so that the initial day cannot be other than the one on which the event occurs, the union representation considers that, applying the doctrine of the Supreme Court, and likewise the rest of the permits, the calculation of the 15-day leave for marriage must also begin on the first working day following the event, when it takes place on a non-business day. Both parties filed an appeal before the Supreme Court.
The Supreme Court recalls its doctrine that establishes that paid leave is due to transitory situations of the employment contract, in which the worker affected by any of the legally or conventionally foreseen causes, is released from the obligation to work, but maintains the right to remuneration. Its purpose is not to grant the worker a break, but to release them from going to work without loss of remuneration, due to the need to attend to a certain situation in accordance with the different objectives included and in order to facilitate the work and family life. Therefore, the leave from work is only justified when there is indeed an obligation to work, but not in vacation periods, non-business days or during suspension of the contract in which there is no obligation to go to work. In addition, the paid leave cannot be deferred to a later time in which the work provision would have resumed.
As a consequence of this doctrine, the Supreme Court considers that these permits only make sense when they are projected over a period of time in which there is an obligation to work, since – otherwise – it would make no sense that their main effect would be “absence from work”. Consequently, it is normal for permits to refer to working days, unless otherwise provided by regulations.
Regarding marriage leave, the Supreme Court considers that the fact that both the applicable collective agreement and the article 37.3 of the Workers’ Statute establishes 15 calendar days, only means that once accrual has started, if there are non-working days for the employee, these cannot be excluded. If the ceremony day is a business day, this day should be included in the 15 days leave, otherwise it would actually be the recognition of 16 days. However, if the ceremony occurs on a non-business day, this cannot be computed within the 15 days of leave to which the employee is entitled since it would reduce this period by one day. Consequently, the Supreme Court concludes that the correct interpretation of the agreement is that when the ceremony takes place on a non-business day for the employee, the initial day of the marriage leave (dies a quo) must be the next working day after its celebration.
For more information on these articles or any other issues involving labour and employment matters in Spain, please contact Iván Suárez (Partner) of Suárez de Vivero at isuarez@suarezdevivero.com or visit www.suarezdevivero.com.
