The continuous modifications to our labor regulations and the legislator’s lack of expertise in the drafting of its precepts have generated a certain amount of controversy when it comes to delimiting the scope of the workers’ right to enjoy the proclaimed breastfeeding leave
The worker will be entitled to breastfeeding leave, even if the spouse does not work, according to the Supreme Court
The worker will have the right to breastfeeding leave, even if the spouse does not work, according to the Supreme Court
“The dispute between company and worker in this case and in many other similar cases is more than understandable, given that breastfeeding leave has been one of the concepts that has undergone the most modifications throughout our recent history”.
The continuous modifications to our labor regulations and the legislator’s lack of expertise in the drafting of its precepts have generated a certain amount of controversy when it comes to delimiting the scope of the workers’ right to enjoy the proclaimed breastfeeding leave.
A recent sentence issued by our Supreme Court on 12 July 2022, clears up doubts about the effectiveness of this right on the part of working parents and underpins its already consolidated doctrine: the worker will have the right – whether male or female – to enjoy breastfeeding leave, regardless of whether the other spouse has paid work or not.
The case: a male employee who was a father and whose wife was not employed
The employee, who had worked for the company since 2006, applied in 2018 for breastfeeding leave to be taken in accumulated form (not for one hour per working day, but for 14 paid working days).
The employer company then denied the request on the grounds that “under current legislation, the aforementioned leave is not intended to be taken in cases where the other parent does not work, as in her case”.
Furthermore, the company states: “it is not possible to grant your request for breastfeeding leave, as the other parent is in a position to carry out the functions that this leave is intended to carry out, and otherwise it would be unfairly compared to the rest of the staff”.
The worker, dissatisfied with his company’s decision, brought an action before the Social Court on duty, requesting that his right to breastfeeding leave be recognized, in addition to receiving 6.0000 € in compensation for possible discrimination, a request which was accepted by the court: “I partially uphold the claim filed and declare his right to breastfeeding leave with the right to reduce his working day by one hour for the care of his minor child, accumulating in full working days for a total of 14 working days”.
Thus, the company, predictably dissatisfied with the tenor of the ruling which found in favour of its injured worker, lodged an appeal before the next instance, the High Court of Justice of Asturias, which maintained the position of the first ruling, except in one respect: “in the sole sense of deleting the reference to her taking her leave by accumulating and reducing one hour of her working day into full days in a total of fourteen days”.
The company bases its appeal for the unification of doctrine before the Supreme Court on the provision of art. 37.4 of the Workers’ Statute prior to the reform following RDL 6/2019, that is, under the amendment introduced by Law 3/2012, of 6 July: “This leave constitutes an individual right of workers, men or women, but may only be exercised by one of the parents in the event that both parents work”.
To settle the controversy, the Fourth Chamber refers to STS 224/2020 of 10 March, which states that the right to breastfeeding leave enjoyed by the father cannot be affected by the situation of the mother; and that the general objective of shared responsibility in family tasks advises an interpretation favourable to the indistinct exercise of the right.
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