In previous posts, we already talked about the equation of the suspension of the contract for maternity and paternity. However, Did you know that this equality is very recent?
To understand what is executed in human resources departments, sometimes it is useful to take a look at the standard and understand why. This is what we will try to cover in this post.
Regulation of the paternity contract
Until quite recently, The parent only had the possibility of taking two days of leave for the birth of a child. This inclusion was regulated for the first time in the Royal Legislative Decree 1/1995, March 24, in art. 37.3b). Although the rule only established two days, this period could be extended by collective agreement or business agreement. The 16 weeks that are regulated today did not exist at that time.
Suspension of the contract due to paternity was regulated in the Organic Law 3/2007, of March 22 for the effective equality of women and men, in art. 48 bis. This duration was 13 days, and could be enjoyed from the end of the leave for the birth of a child. At this time, the maternity period was already sixteen weeks.
Law 9/2009, of October 6 extended the duration to 4 weeks. As the Preamble of this norm said, the purpose of this expansion was to build a positive policy towards the figure of the father, which would allow "encouraging the involvement of men in family responsibilities." Apart from this period, the parent continued to count on the 2 more days of paid leave.
Role of the Workers' Statute
The Workers' Statute that we know today was approved by the Royal Legislative Decree 2/2015, of October 23. In its initial regulation, maintained the suspension of the paternity contract for four weeksAs the rule said, to be enjoyed from the end of the leave for the birth of a child. Subsequently, in 2018 the suspension was extended to one more week, through Final Provision 38.1 of the General Budget Law of that year.
Finally, in 2019, Royal Decree-Law 6/2019 modified the Workers' Statute in the following aspects:
- Modified all reference to two-day paid leave for the birth of a child.
- The causes for suspension of the maternity and paternity contract were eliminated, the terms were changed and the cause for suspension of the contract was determined by “birth”, which includes childbirth and care of a child under 12 months of age.
- As established in art. 48.4 ET, The suspension of the contract due to birth suspends the contract of the biological mother for 16 weeks, and that of the “parent other than the biological mother”, likewise, for 16 weeks. This equalization has been done progressively, but since January 2021 it has been complete.
Two-day leave, regulated?
Since this aspect was modified in 2019 until this year 2021, in which the period of “biological mother” and “parent other than the mother” who have equalized the leave time, Human resources departments have raised many questions about taking the two-day paid leave (regulated for the first time in 1995 and omitted in 2019):
Could workers enjoy it, despite this suppression, if it was regulated in the company agreement? The jurisprudence in this regard has not been clear and has issued contradictory rulings.
However, considering the priority and preference principle hierarchical application of the agreement, the majority of companies have chosen to let the leave be enjoyed if it was regulated in the agreement.
Equalization of the contract by both parents
Nevertheless, from this year 2021, there is full equality of the suspension of the contract of both parents. Consequently, STS 326/2021 has determined that The regulation of paid leave is not applicable in any case, even though it is regulated in the agreement..
Its regulation was born as a consequence of a equalization of the duration of the suspension of the employment contract, and if its enjoyment is allowed, “the paradox would arise that the parent other than the biological mother could have a longer period of time of exemption from the obligation to work than the mother.”
If this post on the evolution of paternity leave has been of interest to you, in previous posts we detail more aspects of the topic. This post has been prepared by Martha Bernal, HR content writer at the EIP International Business School.
