The Administrative Litigation Court number 1 of Barcelona has ordered the City Council of the Catalan capital up to eight weeks for the care of minors up to 8 years of age. The ruling recalls that Spanish legislation. But even so, the judge who authored this pioneering ruling in Spain has recognized the payment of the 4,000 euros plus legal interest claimed by a worker.
This leave, which was created for the first time in Royal Decree Law 5/2023 of June 28, 2023 on conciliation measures, is currently established on an individual basis for workers who must be absent from work to care for their children. The law specifies that the permit “will have a duration of no more than eight weeks, continuous or discontinuous, and may be enjoyed full-time, or on a part-time basis, when the needs of the service allow it and in accordance with the terms established by regulation.” establish.” , but has not made a move so far.
The creation of the permit occurred in response to the need to transpose the 2019 European Conciliation Directive, which called for its existence and for it to be paid. However, despite this requirement, Spanish law establishes it as a “suspension” of employment that should not be remunerated. In September, the European Commission opened a case for not transposing the obligation to implement paid leave at least in the last two weeks of parental leave.
After hearing the ruling, Eva Fernández, Secretary of Equality of the CSIF union that has represented the plaintiff worker, shows her satisfaction “for a pioneering ruling that recognizes for the first time in Spain the right of a worker to have the 8-week parental leave gainful”. This center, he adds, “has been demanding for years that the Government adopt European regulations so that both public employees and workers in private companies benefit.”
Rectification by Barcelona City Council
The case that led to the ruling has its origin in a change in criteria by Barcelona City Council. The public employee appealed the council’s decision to stop paying paternal leave, something he had been doing for almost four months, from the creation of this leave, in June 2023, until October of the same year. On the 19th of that month, an information note from the General Directorate of Public Function of the Generalitat of Catalonia was published in which it indicated that this Administration would stop paying for the leave. Days later, on October 27, Barcelona City Council informed its employees that it was adopting the same decision. “The eight-week parental leave for sons and daughters under 8 years of age is no longer paid,” indicated an email sent to the workers, as stated in the text of the ruling.
In the process, the city council asked that it be taken into account that “the determination of paid or unpaid parental leave is an unresolved issue in Spanish legislation.” Although he also admitted that the deadline for the transposition of the European directive had expired
But the judge has not considered those arguments. And it has dictated that “parental leave must be paid”, based on the fact that they are included in the Basic Statute of Public Employees and that they are paid to workers although the norm does not establish it either.
Although the ruling recognizes that “a regulatory development is necessary that specifies these aspects,” it adds that “it is important to remember that the Spanish State has not transposed the directive—which grants rights to individuals—into Spanish domestic law within the established period.” . The judge highlights the fact that the employer did spend a few months paying for parental leave, so changing its criteria and stopping paying for it means “frustrating the legitimate expectations of the public officials” of the council.
The Secretary of Equality of CSIF trusts that the sentence marks a before and after. “We hope that the Executive takes note and shows that it is truly committed to defending workers’ rights and conciliation. It would not be understood that a Government that publicly boasts of its commitment to social issues continues to turn a deaf ear to this issue. Furthermore, Brussels has already filed charges against Spain for failing to comply with the European directive and now, after this ruling, it is more urgent than ever to resolve this issue,” Fernández concludes.
