I.- The issues raised.

There are two issues that, in the framework a collective dispute, are being considered by conference room of the Supreme Court:

1st) Whether or not intermittent parental leave can be taken in periods of less than one week.

2) Whether or not parental leave can be taken into account for the purposes of calculating the length of vacation time.

II.- The framework of reference letter.

For the purposes that concern us here, we must necessarily start from the literal wording of article bis ET, as already mentioned, introduced at the time by Royal Decree-Law 5/2023 of June 28:

“1. Workers shall be entitled to parental leave to care for a child or foster child for a period exceeding one year, until the child reaches the age of eight. This leave, which shall not exceed eight weeks, continuous or discontinuous, may be taken full-time or on apart-time workshop basispart-time with the regulations.

2. This leave constitutes an individual right of workers, male or female, and cannot be transferred. It is the responsibility of the worker to specify the start and end dates of the leave or, where applicable, the periods of leave, and to notify the business ten days business advance or as specified in collective agreements, except in cases of force majeure, taking into account the status the business and its organizational needs. In the event that two or more workers generate this right for the same cause or in other cases defined by collective agreements in which the enjoyment of parental leave in the requested period seriously alters the proper functioning of the business, the latter may postpone the granting of the leave for a reasonable period, justifying this in writing and after having offered an equally flexible alternative.

As can be seen, the framework for reference letter the possibility of taking full-time parental leave full-time consecutive or non-consecutive weeks. And even though part-time leave part-time i.e., for periods of less than full weeks) is also provided for, we will have to wait for development before it can be exercised. Otherwise, nothing is said about its impact on the calculation of the duration of vacations.

In any case, it is clear that, despite its misleading name, we are dealing with a suspension of the work contract, rather than paid leave. This is clearly evident from its inclusion in letter o) of article .1 ET.

III.- purpose first question raised: parental leave must be taken in weekly periods.

With regard to the first of the two issues, conference room of the Supreme Court sample in concluding that parental leave taken on a discontinuous basis must be taken in weekly periods:

The grammatical interpretation of the rule, guideline first guideline under article .1 of the Civil Code, allows us to conclude that parental leave must be taken in weekly periods. In this regard, the transcribed provision, which regulates the duration of parental leave, expressly states that it shall not exceed eight weeks, whether continuous or discontinuous, and, therefore, by using the feminine and plural adjective, the legislator qualifies the noun weeks, so that if the option of discontinuous enjoyment is chosen, it must be taken in discontinuous weekly periods. Consequently, it cannot be taken in periods of less than one week.

IV.- purpose second question raised: parental leave counts toward the determination of the length of vacation time.

Having clarified the above, the ruling in question addresses a certainly more complex issue, namely whether or not parental leave counts towards the determination of the length of vacation time.

Well, after a very detailed analysis of the precedents and regulatory background (national and supranational) of article bis ET, as well as the social doctrine of the Court of Justice of the European Union (which is omitted in full in this commentary) in light of Directive (EU) 2019/1158 of the European Parliament and of committee, of June 20, 2019, conference room ultimately resolves the following:

Parental leave under article bis of the Workers' Statute also constitutes an exception to the general rule and should be considered work time for the purposes of calculating this period to determine the length of vacation.

Therefore, the interpretation of the business considers that the period of parental leave does not generate the right to a proportional part of the vacation for this period is not in accordance with the law. On the contrary, this period shall be counted for the determination of the duration of the vacation as work .

This conclusion is reached based on the understanding that parental leave is no longer simply a reason for suspending an work contract work the sole discretion of the employee. On the contrary, as it ultimately serves the purpose of shared responsibility for the care of children, this leave should be treated in the same way as the suspension of an work contract work the birth and care of children (Article 48 of the Workers' Statute):

"Parental leave under article bis of the Workers' Statute must be considered within the scope of EU parental leave. Therefore, regardless of whether it is treated differently under Spanish law, the doctrine established in the CJEU judgment of October 4, 2018, Dicu (C-12/17), which refers to maternity leave, to parental leave under article bis of the Workers' Statute, since, on the one hand, the protection of the biological condition of women, after the first six weeks following childbirth of leave for the birth and care of the child, i.e., the remainder of this leave, must be equal to that of the other parent. And, on the other hand, the bond between parents and their children must be fostered equally for both parents.

V.- Conclusion.

First: In the absence of development to the contrary or unless otherwise permitted by agreement or contract, parental leave (whether continuous or discontinuous) must be taken in full weekly periods. We are not, therefore, dealing with a suspension of the work contract work can be taken in hours or days, as is the case with paid leave.

Second: Parental leave must be considered work time and, therefore, must be taken into account when determining the length of vacations.

VI.- Final note.

Just as conference room of the Supreme Court basically resorts to a grammatical interpretation of the literal wording of article bis ET to resolve the first of the issues raised, the argument justifying the resolution of the second issue raised is much more elaborate. So much so that, to this end, it reinterprets the social doctrine of the Court of Justice of the European Union in light of the most recent Directive (EU) 2019/1158 to ultimately equate the enjoyment of parental leave (Article 48 bis) with the enjoyment of contractual suspension for the birth and care of children (Article 48 ET). This equivalence, apart from its consideration for determining the duration of holidays, may have other effects. In this latter sense, it should be remembered, for example, that both contractual suspensions are already equally protected against objective or disciplinary dismissals without cause (Articles 53.4 a) and 55.5 a) ET).

Furthermore, bearing in mind that "it shall be the responsibility of the worker to specify the start and end dates of the leave or, where applicable, the periods of leave" (Art. 48 bis 2 ET), the ruling does not resolve whether the period of parental leave should be calculated in calendar weeks (Monday to Sunday) or from date to date (e.g., Wednesday to Wednesday), the latter option seeming the most reasonable but not without its problems (e.g., when the employee does not work every day of the week because the workshop is workshop on only some of them). Nor does it resolve whether parental leave should be taken in calendar weeks or working weeks, although the latter option seems unlikely since, despite its misleading name, this is not "paid leave" but rather a suspension of the contract [art. 45.1 o) ET].

On the other hand, the discussion about whether parental leave is paid or unpaid seems to have been settled, as the ruling states that "This parental leave of up to eight weeks, with the goal of caring for children under the age of eight, has therefore been configured as leave with suspension of the employment contract and, consequently, unpaid."

In short, although it may seem a minor issue, the ruling takes it for granted that during parental leave, Social Security contributions must be made on the basis of the minimum contribution base: "during which the obligation to contribute on the basis of the minimum base is maintained, when enjoyed full-time." However, , the obligation to contribute during parental leave is not expressly provided for in rule , but is derived solely from an interpretation management assistant Resolution DGOSS 18/2023 and News Bulletins network and 4/2024) based on Articles 13.2 and 69 of Royal Decree 2064/1995 of December 22.

We hope that the above comment has result . However, as always, we remain at your disposal for any subject or concerns that may arise in this regard.

P.S.: The full text of the ruling discussed here can be found at this link.