Comment
I. The issue at hand.
It involves determining which specific types of leave (paid or unpaid) and suspensions of the work contract work with or without Social Security coverage) may or may not be taken into account for the purpose of calculating a series of additional days off (award ”) provided for in the applicable agreement in recognition of attendance at work calendar semesters. The discussion because, for the purpose of calculating these additional days off, the business periods during which certain types of leave and suspensions of work contract are taken, work the understanding that this does not constitute internship . It is therefore not surprising that the ruling discussed here is devoted entirely to clarifying which types of leave and suspensions of the work contract work or work not be taken into account for the intended purposes.
It should be noted, however, that this discussion does not address (and this is very important for properly distinguishing the present discussion from other more or less similar ones) what compensation should be paid to employees while they are on leave or during suspensions of work contract, work , more specifically, which types of leave and suspensions must be taken into account when accruing or calculating those additional days off.
II. The Key Starting Point: The Distinction Between Neutral and Discriminatory Leave/Suspensions.
With the terms of discussion thus defined, discussion based on the already extensive body of case law established in more or less similar cases (which, due to their length, we will not cite in this commentary), the judgment under discussion here begins with a very important preliminary distinction: (i) leaves/suspensions that, for the intended purposes, may be considered neutral, and (ii) leaves/suspensions that may be considered discriminatory. Thus, the exclusion of the latter from the accrual or calculation of additional days off would be prohibited on the grounds of discrimination, but not that of the former.
From that point on, whether or not the leave is paid, or whether or not suspensions of the work contract work any Social Security benefits, is a matter that is irrelevant for the intended purposes and therefore takes a back seat.
III. – Leave types to be taken into account when calculating additional days for attendance work.
1. Neutral permissions:
In summary, the types of leave (whether paid or unpaid) that, according to the aforementioned ruling (and subject to any contrary provisions in a collective bargaining agreement or employment contract), could be considered neutral (and for which, therefore, excluding an employee from taking such leave would not be considered discriminatory) are as follows:
(i) Leave for marriage [Art. 37.3(a) ET].
(ii) Leave due to death [Art. 37.3(b) bis ET].
(iii) Leave due to change of residence [Art. 37.3(c) ET].
(iv) Leave for the fulfillment of an unavoidable obligation [Art. 37.3 d) ET].
(v) Leave due to weather conditions [Art. 37.3 g) ET].
(vi) Leave attendance [Art. 23.1 a) ET].
No mention is made of other possible legal or contractual permissions. Therefore, one must consider the ultimate purpose of the permissions in question. However, if they do not serve to protect a fundamental right, one could well argue that permissions such as those relating to personal matters are neutral in nature.
2. “Discriminatory” permits:
Conversely, the types of leave (whether paid or unpaid) that, according to the aforementioned ruling, could be considered discriminatory (and for which exclusion from taking such leave could therefore be deemed discriminatory) are as follows:
(i) Leave for caregivers [Art. 37.3(b) ET].
(ii) Leave for the development union or staff representation duties staff Art. 37.3(e) ET].
(iii) Leave for prenatal examinations, childbirth preparation classes, and sessions required for adoption, foster care for the purpose of adoption, or temporary foster care [Art. 37.3 f) ET].
(iv) Breastfeeding leave modality accumulated modality (Art. 37.4 of the Workers’ Statute).
(v) Leave for family-related force majeure (Art. 37.9 of the Workers’ Statute).
No mention is made of other possible legal or contractual leave provisions. Therefore, the ultimate purpose of the leave in question must be taken into account. However, the same principle could well be applied to leave (whether paid or unpaid) provided for by contract attendance one’s own attendance or that of others (especially, in the latter case, when it involves caring for family members or cohabitants).
IV. — Exclusions to be taken into account when calculating additional days for attendance work.
1. Neutral suspensions:
Unlike the analysis provided by conference room regarding work permits, the judgment in question offers no guidance on which grounds for suspension would be considered neutral. Consequently, for the time being, the determination of which suspensions are neutral depends on the express identification of discriminatory suspensions. Thus, subject to any provisions established in collective bargaining agreements or contracts and to any express provisions in future rulings, suspensions that have not been deemed discriminatory in case law shall be considered neutral.
All things considered, there does not appear to be any dispute regarding the neutral nature of suspensions of the work contract work are not considered work time or that do not entail an obligation to make social security contributions. For example, by mutual agreement, pursuant to validly agreed-upon clauses, due to deprivation of liberty pending a conviction, due to an ERTE, due to the exercise of position representative position , due to leaves of absence, etc.; perhaps also due to strikes and lockouts. Greater uncertainty would arise regarding the suspension of employment salary because, even though Supreme Court quotation (plenary session of the Executive Council) 522/2026, dated May 29 (case no. 28/2025), which addresses this issue, is expressly quotation , nothing is specified in this regard.
2. “Discriminatory” suspensions:
Suspensions of the work contract work with or without Social Security coverage) that, according to the aforementioned ruling, could be considered discriminatory (and for which exclusion from such benefits could therefore be deemed discriminatory) would be those listed below:
(i) Suspension of work contract work temporary disability [Art. 45.1(c) of the Workers’ Statute (ET)].
(ii) Suspension of the work contract work birth, adoption, foster care, or pre-adoption foster care [Arts. 45.1(d) and 48.4, 5, and 6 of the Workers’ Statute (ET)].
(iii) Suspension of the work contract work risk during pregnancy or breastfeeding [Articles 45.1(e) and 48.7 of the Labor Code].
(iv) Suspension of the work contract work victims of gender-based or sexual violence [Articles 45.1(n) and 48.8 of the Labor Code].
(v) Suspension of the work contract work parental leave (Article 48 bis of the Labor Code).
There is no mention of any other possible grounds for suspension, whether statutory or contractual. Therefore, one must consider the ultimate purpose of the suspensions of the work contract work question.
V. Final Note: The ineffectiveness of contractual clauses in their entirety in cases of disputes that are exclusively interpretive in nature.
Like many other collective bargaining agreements, the one applicable to the case at hand includes an express “all-or-nothing” clause. However, the fact that this is indeed the case does not in any way mean that, in light of the interpretation provided by conference room of the Supreme Court, the disputed clause in the agreement —or even the agreement as a whole—must be set aside:
“This conference room has conference room substantially altered or rendered void any provision of agreement statutory agreement business agreement ; rather, it has merely interpreted it. The ‘entire agreement’ clause does not apply to a lawsuit in which we have merely clarified how that rule should be applied, in accordance with the Spanish Constitution. If a award is regulated award a agreement and that regulation is discriminatory, the response cannot be to eliminate that award the rest of agreement ; rather, the right to award must be recognized award with the fundamental right to equality and the prohibition against discrimination.”
VI. Conclusions.
First: The types of leave (paid or unpaid) whose exclusion may be considered discriminatory for these or other purposes are as follows:
(i) Leave for caregivers [Art. 37.3(b) ET].
(ii) Leave for the development union or staff representation duties staff Art. 37.3(e) ET].
(iii) Leave for prenatal examinations, childbirth preparation classes, and sessions required for adoption, foster care for the purpose of adoption, or temporary foster care [Art. 37.3 f) ET].
(iv) Breastfeeding leave modality accumulated modality (Art. 37.4 of the Workers’ Statute).
(v) Leave for family-related force majeure (Art. 37.9 of the Workers’ Statute).
Second: The types of leave (paid or unpaid) whose exclusion may be considered non-discriminatory for these or other purposes are as follows:
(i) Leave for marriage [Art. 37.3(a) ET].
(ii) Leave due to death [Art. 37.3(b) bis ET].
(iii) Leave due to change of residence [Art. 37.3(c) ET].
(iv) Leave for the fulfillment of an unavoidable obligation [Art. 37.3 d) ET].
(v) Leave due to weather conditions [Art. 37.3 g) ET].
(vi) Leave attendance [Art. 23.1 a) ET].
Third: Suspensions of the work contract work whether or not they entail Social Security benefits) whose exclusion may be considered discriminatory for these or other purposes are as follows:
(i) Suspension of work contract work temporary disability [Art. 45.1(c) of the Workers’ Statute (ET)].
(ii) Suspension of the work contract work birth, adoption, foster care, or pre-adoption foster care [Arts. 45.1(d) and 48.4, 5, and 6 of the Workers’ Statute (ET)].
(iii) Suspension of the work contract work risk during pregnancy or breastfeeding [Articles 45.1(e) and 48.7 of the Labor Code].
(iv) Suspension of the work contract work victims of gender-based or sexual violence [Articles 45.1(n) and 48.8 of the Labor Code].
(v) Suspension of the work contract work parental leave (Article 48 bis of the Labor Code).
Fourth: Unless otherwise provided by law, contract, or case law, the exclusion—for these or other purposes—of suspensions of the work contract work whether or not they entail Social Security benefits) not mentioned in the section could be considered non-discriminatory.
