Until mid-2023, leave due to an accident or serious illness, hospitalisation or a surgical operation without hospitalisation that requires a rest period at home was granted for 2 days but, as of June 2023 and since the publication of Legislative Royal Decree 5 of 28 June 2023 in the Official State Gazette (BOE), workers can take 5 days paid leave for an “accident or serious illness, hospitalisation or a surgical operation without hospitalisation that requires a rest period at home of a spouse, common law partner or relatives up to the second degree of consanguinity or kinship, including the consanguine family member of a common law partner and any persons other than the previous ones who live with the worker in the same home and require effective care by such worker”. 


Since its publication, the new text of Article 37.3 b) of the Spanish Labour Relations Act has certainly raised some interpretive doubts that have needed to be resolved one by one in various ways by the Spanish Courts of Justice.

 

Is the leave of 5 days counted in working days or calendar days?

 

At the time it was published, the regulation determined the quantity parameter for the leave as 5 days, but it forgot to define whether these five days are working days or calendar days and it has been the judges who have needed to clarify this regulatory provision, specifying in the judgement of the National Court of 25 January 2024 that, since the regulatory amendment stems from the transposition of the European Directive, the leave must be counted in working days, no other interpretation is applicable hence it must be concluded that the days of leave for various cases of illness, accident or hospitalisation are “working days” and not “calendar days”.

 

This specification, as was obvious, has had an impact on the regulations of collective bargaining agreements, stating several conventional provisions null and void that count the leave in calendar days and that now, after the amendment made by Legislative Royal Decree 5/2023, are no longer in accordance with Directive 2019/1158, which expressly states they are working days, or the new text of the Spanish Labour Relations Act.

 

This has not been the only issue that Spanish case law has needed to deal with; it has also examined other issues such as whether or not the leave for hospitalisation automatically lasts 5 days.

 

The judgement ruled by the High Court of Justice of Catalonia of 6 June 2024 analysed a claim related to a collective bargaining dispute filed by a trade union petitioning that the entire 5 days leave could be taken for serious illness, hospitalisation or a surgical operation of a family member, without needing to justify the reasons for this on a daily basis but it ruled that the leave does not automatically last 5 days.

 

The Labour Division dismissed the trade union’s claim specifying that the leave for hospitalisation is a causal or conclusive paid leave and therefore “the employee is entitled to use the five days leave whenever it is proven that the reasons occur by means of ex post justification so that, if the needs for care of the family member only requires availability of, for example, three working days, which do not necessarily need to be taken continuously, the most logical, reasonable and coherent interpretation is that this person can take these three days leave but not the five days, since there is no reason to justify being absent from work for the other two days”.

 

The judicial interpretation is clear: The term of the leave is linked to the legal reason occurring that justifies it in order to avoid it being used and taken because of “laziness or for holidays or personal affairs” but, be careful, its application must be flexible.

 

The Labour Division has repeated in numerous rulings by stressing that taking the leave must be flexible and the following must be taken into account:

 

  • It is not necessary to justify the reason by submitting daily proof because it is sufficient to prove that such reason continues afterwards.

  •  Discharge from hospital does not mean the leave ends and it will remain in force if home care or a rest period is required.

     

This flexibility was stipulated even more so in the recent judgement of the National Court of 12 September 2024 that ruled, even if the leave is conclusive and must have a “certain immediate need” linked to the basic reason, the workers must be able to take it flexibly, either consecutively of even in several fractions, and they can determine the date it begins while the basic reason continues, depending on their needs for work-life balance.

 

It is obvious we need to be up to date with case law decisions because they determine the nature of the leave and therefore the best option is to obtain good preventive advice that considers all the new legal and case law developments that could affect your company. 

 

 

Autor: Yolanda Tejera, abogado de Derecho Laboral en RSM