The Supreme Court has reiterated that paid leave must be taken on workdays and not calendar days, unless otherwise specified in the regulations. This was confirmed in a ruling this month, which ratifies a previous ruling by the National Court on leave for death and care of family members, which upheld a lawsuit by the unions against the collective agreement of the contact center.
In a ruling dated November 13, released by the USO union and consulted by elDiario.es, the Social Chamber dismisses the appeal presented by the CEX employers’ association against the ruling of the National Court of January 2024 that challenged some articles of the sectoral agreement that linked care leave for hospitalization and the death of family members to “calendar” days.
Article 37.3 of the Workers’ Statute regulates the right of workers to “be absent from work, with the right to remuneration” for various reasons. Among them, it recognizes “five days for a serious accident or illness, hospitalization or surgical intervention without hospitalization” of family members and cohabitants, and “the days for the death of the spouse, de facto partner or relatives up to the second degree of consanguinity or affinity.”
Since the legislation does not specify whether these days are natural or working days, the employers demanded that these be “natural”, but the Supreme Court rejects this possibility and reiterates its doctrine that the leave days must be working days.
Must start on business days
In its ruling, the Supreme Court argues that, although the Workers’ Statute “indicate nothing about the natural or business nature of the days of hospitalization or death leave,” the court has been maintaining that “the leave is only conceivable if it is projected over a period of time in which there is an obligation to work, since otherwise it would make no sense for its main effect to be be absent from work”.
“Therefore, it is normal for permits to refer to working days and that is the interpretation that should be made by the ET. [Estatuto de los Trabajadores]”. Interpretation that, in addition, is in accordance with the European Directive that regulates these permits.
The ruling includes several criteria consolidated in jurisprudential doctrine, among which includes that, if the event causing the leave (such as the illness or death of a family member) occurs on a working day, “that is the initial day of the leave.”
On the other hand, “when the causative event occurs on a non-working day, the purpose of the permit requires that it must begin on the next immediate working day.”
The judges explain that, given the literal wording of the Statute, which refers to “being absent from work,” “the initial day of enjoyment of these permits cannot be a non-working day, but rather the first working day that follows the day on which the event that gives the right to the permit occurred.”
The Supreme Court also recalls that “this is a doctrine in accordance with the CJEU ruling of June 4, 2020”, in which the European magistrates consider “that workers cannot claim them during the weekly rest period or paid annual leave.
The USO union highlights in a statement that the ruling not only resolves the conflict in this sector, but also consolidates a doctrine of general scope, applicable to all sectors and all collective agreements.
Source: www.eldiario.es
