The Court rejects the business interpretation of starting leave on the day of the causative event and defends the right of workers to adjust their start based on their conciliation needs.

The lawsuit filed by three unions against a group of automobile service companies in the Collective Conflict procedure 167/2024 is resolved. All of the defendant companies are subject to their own Collective Agreement.

November 29, 2023, these companies issued an internal note to regulate the enjoyment of certain permits, adjusting them to the legislative changes introduced by Royal Decree-Law 5/2023. In said statement, mandatory instructions were established on the leaves for serious illness, hospitalization or surgical intervention, indicating that these had to begin from the day of the causative event, up to a maximum period of five consecutive calendar days, and that their granting required the presentation of medical certificates that included the specific origin and duration of the situation.

Regarding the permits due to force majeure, it was specified that these should begin on the first working day following the event and be maintained as long as the cause subsists, with a limit of hours equivalent to four ordinary work days.

On April 23, 2024, a mediation event was held at the Interconfederal Mediation and Arbitration Service (SIMA) and the parties were unable to reach an agreement, maintaining the controversy over business regulations related to the initiation and justification of permits.

Subsequently, the unions reached a partial agreement with the defendants and the only pending question was to declare the company's instruction to enjoy the permit provided for in art. 37.3 b) of the ET had the obligatory start on the day of the causative event. The unions argued that this interpretation was unjustified after the reform of the ET by RD Law 5/2023. The company opposed, arguing that the decision on the form of enjoyment cannot be left to the discretion of the worker, but is part of the business organization to avoid discriminatory situations against workers without the same family support to provide care work.

The parties agreed on the strictly legal nature of the controversy.

The National Court interprets and analyzes the following points:

• The Collective Agreement does not establish when the calculation of the leave must begin, nor does it specify that it must begin on the day of the causative event.
• Spanish regulations, through art. 37.3 b) of the ET and European Directive 2019/1158, does not clarify this aspect, which has generated a jurisprudential discussion on how to interpret the beginning of the permits.
• Spanish jurisprudence indicates that, if the day of the causative event is not a working day, the leave should not begin until the next working day, thus allowing the worker some flexibility to adjust the start of the leave, as long as the reason for the leave persists.
• The company's interpretation is restrictive and limiting the enjoyment of the permit since it is a general principle of law that “ “where the norm does not distinguish, the interpreter should not distinguish.”
• Family and cohabiting care permits are exercised mostly by women, which is why Directive 2019/1158 promotes co-responsibility in the care of family members, allowing men and women to more fairly balance their family and work responsibilities in line with art 4 of LO 3/2007 for equality between women and men.

The Court concludes that the company's interpretation, by requiring that the leave be mandatory to begin on the day of the causative event, is contrary to the principle of real equality, since it maintains the so-called "gender labor gap. In short, given the lack of provision in the Convention,The start of the permit does not have to coincide with the date of the causative event. The purpose of the permit is to facilitate reconciliation as long as the situation that gave rise to it persists, allowing a flexible adjustment of its start based on care needs. For all this,The claim was upheld and the note issued by the companies confirming the right of the affected personnel to enjoy the permission of art. 37.3 b) without its beginning necessarily being set on the day of the causative event.