Clause 37 of the Workers’ Statute governs paid leave in Spain, and improvements can be made relating to the grounds and periods of time by virtue of the Collective Bargaining Agreement applicable to each company.
Paid leave begins when the triggering event takes place, but what happens if the triggering event falls on an official holiday or non-working day of the employee?
A recent judgement of the Supreme Court (Judgement 145/2018 of 13 Feb. 2018), rules on multiple interpretations, indicating that paid leave can only be taken as of the triggering event and not before and, in the event that it falls on an official holiday or non-working day of the employee, the leave shall begin on the next working day.
This judgement refers to the following forms of paid leave in Spain:
- Leave for wedding
- Childbirth
- Family bereavement
There is a peculiarity in relation to two-day leave for the hospitalisation of a family member, as established in the Workers’ Statute: in this case, the leave does not have to coincide with the first two days of hospitalisation; instead, if the hospitalisation period exceeds two days, the employee can take the leave at any time during the admission, as stated by the High Court of Castille and Leon (Ruling 247/2008). The two days can be taken consecutively or separately. To this end, the employee must inform the employer in advance and justify the choice.
Furthermore, if a family member is admitted to hospital on several occasions but with the same complaint, the employee is entitled to successive periods of leave as each instance of hospitalisation is deemed to be a different triggering event. However, in the event of two instances where treatment is based on the same medical procedure, separated by one day, but which does not require admission, the leave is calculated as of the first instance, and the days, as determined by the STSJ (High Court Judgement) Castille and La Mancha (EDJ 2005/24485) may not be accumulated.
The company must regard the days of paid leave as days actually worked and the employee must not be required to make up for them; days of paid leave are always considered to be calendar days, unless the applicable Collective Bargaining Agreement deems them to be working days.
In addition to the paid leave governed by the Workers’ Statute, some Collective Bargaining Agreements in Spain establish leave for particular items which should not be regarded as days actually worked, as this is freely disposable leave and no reason is required to take it, which is why it should not be taken into consideration in the calculation of the annualised working hours.
The employee will always be required to submit to the company a document justifying and certifying their absence from the place of work.
The best option available to companies to ensure that they are able to control paid leave in Spain is to introduce a management system which simplifies this staff administration task.
Soledad Moriche
