The structure of parents’ leave in Spain has undergone significant advances over the last few years aimed at achieving equality between parents and their work-life balance. However, these advances have not sufficiently taken into consideration the different family models that exist, leaving those that do not fit in with the traditional two-parent paradigm at a disadvantage. Among these, single-parent families face a regulatory situation that does not fully acknowledge their specific needs.


Article 48.4 of the Spanish Labour Relations Act, (ET), stipulates that workers are entitled to 16 weeks leave for childbirth, care of a minor and breastfeeding, divided between the parents. This system, which was updated in 2019 by Legislative Royal Decree 6/2019, seeks to make the rights of both parents the same; but this raises the following crucial question:


What happens in the case of single-parent families where there is only one parent?

 

This question was submitted to the Spanish Constitutional Court of 6 November 2024 and the answer was provided in its judgement, which we analyse below:

 

A family model with a disadvantage

 

The basis of the debate lies in Article 48.4 of the Spanish Labour Relations Act (ET). According to its current text, amended in 2019 to make the leave for both parents in two-parent families the same, this article stipulates that each T he basis of the debate lies in Article 48.4 of the Spanish Labour Relations Act (ET). According to its current text, amended in 2019 to make the leave for both parents in two-parent families the same, this article stipulates that each parent is entitled to 16 weeks non-transferable leave. However, in single-parent families, where there is only one parent, there is a loophole: The leave of the parent that does not exist cannot be added, which implies a clear disadvantage for these households compared with two-parent families.

 

Article 357 of the Spanish General Social Security Act, (LGSS), stipulates the following: "a single-parent family shall be deemed to consist of only one parent who lives with the child that is born or adopted and who acts as the sole supporter of the family". This article provides the regulatory framework defining single-parent families and suggests that a specific approach is needed to take into account this particular situation because, in practice, these parents are the only ones responsible for their children, without the support of the other parent in terms of leave from work.

 

This limitation directly affects the minors born in singleparent families, which are allowed a considerably shorter time with their parent than those born in families with two-parents.

 

The disproportional impact on female workers


Although the regulations do not discriminate by gender, they mainly affect women, because in 81.4% of singleparent families, the only parent is a woman, according to the National Statistics Institute (INE). This leads to “indirect discrimination” that continues to create inequality and makes a work-life balance difficult to achieve. The High Court of Justice of Catalonia already warned that these regulations also harmed the minors, whose greater interest must prevail, according to national and international law.

 

The grounds of the arguments in the judgement


After analysing the issue, the Spanish Constitutional Court reached the conclusion that the lack of any provisions for single-parent families implies a legislative omission that violates the principle of equality, included in Article 14 of the Spanish Constitution. Although the legislator is conferred a wide margin to structure the social security system, all the measures adopted must observe the principles of reasonability and proportionality. T he judgement stresses that the current design:

 

  • Treats minors unequally depending on the family model: Children of single-parent families are granted less time for their attention and care in spite of having the same needs as those of two-parent families.

 

  • Has a negative impact on female workers: The impossibility to extend the leave contributes to perpetuating the traditional gender roles and makes it difficult for these women to enter the labour market.

 

Transitory interpretation: 26 instead of 16 weeks


Until the legislator makes the required amendments, the Spanish Constitutional Court ruled a provisional solution: For single-parent families, the biological mother’s leave of 16 weeks is extended by the additional 10 weeks that would correspond to the other parent, excluding the mandatory six weeks after childbirth. This means mothers in single-parent families can take a total of 26 weeks’ leave, a substantial advance; however, this is still not enough to correct all the structural inequalities.

 

Can this criteria be retroactive?

 

The possible retroactivity of a judgement ruled by the Spanish Constitutional Court depends on whether its interpretation only clarifies rights that have already been acknowledged, such as those in Article 48.4 of the Spanish Labour Relations Act, without changing vested rights or violating legal certainty. In the case of singleparent families, it could be argued that this interpretation enables the leave to be extended to 26 weeks even for births prior to the judgement, providing the child is younger than 12 months old when requesting such leave, as stated in the regulation.

 

At RSM, we have focussed our attention on these changes and we are ready to provide advice both to companies and workers about their rights and obligations in this new situation. Please do not hesitate to contact us if you would like to know how this judgement could affect your situation. 
 

 

Autor:  Roberto Villon, socio de Derecho Laboral en RSM