2019 saw the approval of the regulation giving maternity and paternity leave equal treatment, with both parents being able to choose the same days’ paid leave. However, some of the loose ends of the new regulation are now being addressed by the courts.

Royal Decree-law 6/2019 on urgent measures to ensure equal treatment and opportunities between men and women as regards employment and occupation, approved paternity leave which, following various improvements, stands since January 1, 2021 at sixteen weeks (the same for both parents) and is an individual and nontransferable right. The regulation did not address a few aspects, which are slowly being clarified by the labor courts.

The first conflictive issue, as we explained in the previous post, was that said royal-decree law eliminated the two-day leave for the birth of a child which until then had been contemplated in article 37.3.b) of the Workers’ Statute. The reason for this measure seemed clear since, of the sixteen weeks that the contract is suspended, both parents must take six consecutively and simultaneously after the birth. This left no time to enjoy the above-mentioned two days’ paid leave, which was also designed to be taken after the birth.

Although the rule eliminated paid leave for the birth of a child from the Workers’ Statute, controversy was served, because it did not lay down any provisions with respect to all the references in collective labor agreements replicating or improving on the two days’ paid leave. Contradictory judgments were soon to arrive.

In relation to this matter, the Supreme Court judgment of January 27, 2021 concluded that the elimination of the two days’ paid leave for the birth of a child and putting the suspension of the employment contract of the mother and father on an equal footing, made the provision in the collective labor agreement of a company that improved on the legal provision of the former leave for the birth of a child inapplicable.

The Supreme Court confirmed that a company can deny leave for the birth of a child, even if it is recognized in the collective labor agreement, since this leave of absence is incompatible with current paternity leave.

As the High Court indicated, the actual wording of the regulation allowed this compatibility because the former wording stated that the suspension of the contract due to paternity leave took effect from the end of the leave for birth of a child, envisaged in the law or in a collective labor agreement. As a result, this naturally meant that the leave had to be taken before the suspension of the contract and specifically when the child was born. As the Supreme Court held, this no longer occurs now that part of the new paternity leave has to be taken immediately after the birth. The judgment argued that neither could it be taken after the six-week suspension of the contract granted under the current paternity leave.

The court also held that the current law was approved to ensure that men and women were given equal treatment in this area and it would be paradoxical to give the father an additional two days for the birth whereby the father could enjoy longer leave than the actual biological mother would.

Cases in which the baby dies

Now that the question of leave for birth of a child has been resolved, a new aspect has been brought before the courts: Should both parents be given paternity leave in those cases in which the baby dies before birth?

In these cases, the Social Security authorities have only been granting the mother leave, arguing that this transpires from article 26 of Royal Decree 295/2009, of March 6, 2009, implementing the regulation applicable to maternity and paternity leave, which indicates that “paternity benefit is not applicable if the child or minor dies before the start of the suspension or leave. However, after the right to the benefit has been recognized, it will not disappear even if the child or minor dies”.

The recent judgment by the Cantabria High Court of December 10, 2021 dismissed this argument on the grounds that the changes in 2019 sought to encourage shared responsibility for work, private and family life, reason why the law progressively gave equal treatment to the length of the leave of both parents for the birth of a child. This means that both parents must always be treated equally and, furthermore, the hierarchical superiority of the Workers’ Statute must prevail over a royal decree and therefore leave is granted to both parents.

We will still have to wait a while until a definitive court criterion emerges on the subject and, in the meantime, watch out for the new conflicts that this leave is bound to generate.


Mercedes Antón