Paid leave is governed by Article 37 of the Workers’ Statute which stipulates that an employee, subject to prior notice and justification, may be absent from work, whilst retaining the right to pay, for any of the reasons set out and for the period specified for each situation.
What types of paid leave are provided for under the Workers’ Statute?
(a) 15 calendar days in the event of marriage or the registration of a civil partnership.
(b) 5 days in accident serious illness, hospitalisation or outpatient surgery where the spouse, civil partner or relatives up to the second degree of kinship by blood or marriage – including the civil partner’s blood relatives – require rest at home, as well as any other person not falling within the above categories, who lives with the worker at the same address and who requires the worker’s active care.
(b bis) 2 days following the death of a spouse, civil partner or relatives up to the second degree of kinship by blood or marriage. Where travel is required for this purpose, the deadline will be extended by 2 days.
(c) 1 day due to a change of usual place of residence.
(d) For the time required, in order to fulfil an unavoidable public and personal duty, including the exercise of the right to vote.
(e) To carry out trade union or staff representation duties in accordance with the terms laid down by law or by agreement.
(f) For the time required for the purpose of sitting examinations antenatal and antenatal preparation techniques; and, in cases of adoption, foster care with a view to adoption or temporary foster care, for attending the compulsory information and preparation sessions and for the completion of the compulsory psychological and social reports prior to the declaration of suitability, provided always that, in all cases, provided that these take place during working hours.
Which type of paid leave takes precedence: that set out in the Collective Agreement or that laid down in the Workers’ Statute?
It is understood that the Workers’ Statute sets out the minimum leave entitlements and that the Collective Agreement will improve upon these; therefore, in the event that the same matter is regulated in both the Collective Agreement and the Workers’ Statute, we will apply the provisions of the Collective Agreement, as these will offer at least better terms.
What would happen if the Collective Agreement did not provide for paid leave that is, in fact, included in Article 37 of the Workers’ Statute?
Where a collective agreement does not provide for paid leave that is provided for in the Workers’ Statute, the employee shall be entitled to take such leave. The collective agreement may improve upon the conditions laid down in the Workers’ Statute, but may not make them less favourable.
We must bear in mind that the Royal Decree-Law 5/2023 of 28 June, included new permits in the Labour Regulations, which come into force on 30 June 2023; it may be the case that these are not included in the Agreement.
The next question to ask is: from what date does the paid leave start to be counted?
Unless otherwise specified in the collective agreement, there are court rulings regarding the determination of the starting date for calculating the period of entitlement to paid leave and time off recognised in the collective agreement, in the event that the start date coincides with a non-working day for the employee.
This is the case, for example, in the paid leave for marriage in which, if the ceremony takes place on a non-working day, the leave period must begin on the first working day following the ceremony.
The Supreme Court considers that Paid leave is requested and granted to be taken on working days, as there is no need to order them on public holidays, because we don’t work then.
For this reason, the aforementioned court reiterates in its case law that all paid leave must be taken on working days.
What happens if the circumstances giving rise to the paid leave coincide with a holiday period that we have already started?
If the employee is already on holiday at the time the triggering event occurs, they may not interrupt their holiday to take the paid leave, nor may they take it after their holiday has ended.
