The Spanish Supreme Court rules on paid leave calculations

The High Court ruling dated 13 February 2018, resolved the dispute between employers and trade unions regarding the date on which the calculation of this paid leave should commence. In particular, controversy arises in those cases in which the event giving rise to the leave (marriage, birth of a child and death of a relative) occurs on a non-working day.

The Workers' Statute (hereinafter, the WS) regulates the aforementioned paid leave in article 37.3 paragraphs a) and b), but does not expressly establish the day on which the calculation of leave must commence. The Collective Agreement applicable to the case in question, the State Collective Agreement for the Telemarketing Sector (hereinafter the "TS"), provides in article 22.1 that "workers may, subject to prior notice and justification, be absent from work, with the right to remuneration from the moment the event giving rise to the leave occurs".

The trade union representatives consider that, in cases where the event giving rise to the leave occurs on a non-working day for an employee, the calculation of the leave must commence on the next working day following the event. In contrast, the employer alleges that the calculation of the leave commences from the date the event giving rise to the leave occurs, regardless of whether it is a working day or a public holiday, as otherwise it would mean a violation of the principle of immediacy between the event taking place and the leave being taken which would be contrary to the wording of the collective agreement.

The National High Court, in its ruling of 13 July 2016, ratified the theory maintained by the employer, arguing that:

• The WS does not impose a specific form of calculating periods of paid leave, for which it is possible for the parties, in exercising their willingness to negotiate, to determine this in the Collective Agreement. In this regard, the Collective Agreement establishes that it will commence from the day the event giving rise to the leave occurs.

• Given that the conventional text is clear, only a literal interpretation can be made of it, since "When the words and intentions of the contracting parties are clear and definitive and leave no doubt as to their intention, the literal meaning of the clauses must be maintained, without the need to resort to any other rules of interpretation".

Therefore, the National High Court has declared that the paid leave set out in article 28.1 paragraphs a), b) and d) of the Civil Code must be taken to be "as soon as the event giving rise to the leave occurs and not from the next working day".

However, the applicant appealed the judgment and the Supreme Court ruling in its favour. In its ruling, the High Court makes a different interpretation of the article, stating that:

• The conventional provision is called "paid leave", which means that leave is granted on working days, as it is not necessary to request leave on an official holiday as it is not a working day.
• The Court justifies the expression "from the date the event giving rise to the leave occurs" on the grounds that it indicates that the permission can only be taken from when the event giving rise to the leave takes place and not before. That is, it is a clause that conditions the entitlement to the right but does not determine which day is to be used for calculating the same.
• Finally, it sustains that an interpretation to the contrary could mean that the worker would be deprived of several days' leave in cases where the event giving rise to the leave occurred at the beginning of several consecutive holidays, which would be contrary to the spirit of article 37 of the Workers' Statute.

All of this leads to the conclusion that the first day of entitlement to paid leave under the aforesaid article "cannot be a public holiday, but rather the first working day following the occurrence of the event giving rise to the leave"

This judgment does not constitute binding case law and, in principle, only settles the specific case presented, that is, regarding the date on which the calculation of paid leave commences for marriage, the birth of a child and the death of a family member contained in the Collective Bargaining Agreement applicable to the Telemarketing Sector. Notwithstanding the foregoing, we consider that its doctrine could be extended to other areas and sectors whenever it interprets the spirit of article 37 of the Workers' Statute, indicating that collective agreements cannot include conflicting provisions that are harmful to the worker.