Supreme Court puts an end to paid leave for accompanying children to the doctor
The Supreme Court ruling (SC 09-12-2020) has established this action as unpaid leave.
Article 37.3.b) of the Workers’ Statute establishes that The worker, with prior notice and justification, may be absent from work, with the right to remuneration, for any of the following reasons and for the following time…
b) Two days for the death, serious accident or illness, hospitalisation or surgery without hospitalisation requiring home rest, of relatives up to the second degree of consanguinity or affinity. When the worker needs to travel for this purpose, the period shall be four days.
It can be seen, therefore, that point b) and the article in general do not include any specific leave to accompany family members to the doctor.
However, the law (E.T. art. 37.3.d) does provide for paid leave to fulfil an inexcusable duty of a public and personal nature, i.e. a duty whose non-fulfilment may entail some kind of liability and which cannot be exercised through a representative or substitute. Moreover, it does not establish any minimum or maximum period of leave, since it is for the time necessary for the performance of the duty:
d) For the indispensable time, for the fulfilment of an inexcusable duty of a public and personal nature, including the exercise of active suffrage. When a specific period is stipulated in a legal or conventional rule, the duration of the absence and its financial compensation shall be governed by the provisions of that rule.
Thus, up to now, some currents could consider that accompanying a child to the doctor could be equated to an inexcusable duty of a personal nature, given that this task forms part of the obligation of parents to care for their children provided for in the Civil Code (CC, art. 110 and 142).
To this effect, the Supreme Court (SC 09-12-2020) has ruled that parents are not entitled to paid leave to accompany their children to the doctor as it is understood that the need to care for a child is not a public duty.
According to the Court, leave for the performance of an inexcusable duty is granted to attend to duties of a public nature. An example of this would be if a worker is selected as a juror in a trial. The same is true if a worker is called to testify at a trial, either as a defendant or as a witness. Likewise, if an employee is appointed chairman, member, voting officer or proxy at a polling station. In all three cases, the employee is entitled to paid leave due to an inexcusable duty of a public and personal nature.
On the other hand, and according to the ruling of the Supreme Court, unless, as some collective agreements do, this type of paid leave is specifically included, as for example the Collective Labour Agreement for the offices and firms sector in Catalonia in its article 35.2 (“Workers shall be entitled to a maximum of 18 hours of paid leave per year to attend, for the essential time, their own medical visits, or to accompany ascendants or descendants and spouses to their respective medical visits. Likewise, these hours may also be taken to attend, for the indispensable time, school tutorials for children or those under the guardianship of the worker. This leave must be taken with as much advance notice as possible, and subsequent justification will be required”), the company may ask the worker who accompanies a child to the doctor during working hours to make up the time invested or may deduct the salary of these hours not worked from the paycheck, which will be considered for all purposes as unpaid leave.
The AddVANTE Labour Management Department remains at your disposal for further information or to resolve any queries that may arise in relation to this article.
