While on paternity leave, a worker managed to pass a selective process to join the Nava City Council as an official, in Asturias. When the first six weeks of leave had elapsed—which the law requires to be enjoyed continuously after the birth of a son or daughter—the council required him to take up his position.
The worker then requested medical discharge and agreed with the City Council to postpone the second part of his paternity leave, an agreement that the local administration accepted without objections.
However, when the time came to enjoy the 44 days of leave that remained pending, the National Social Security Institute (INSS) denied him that right. The decision meant not only not being able to enjoy those days, but also not receiving the corresponding financial benefit. Given this situation, the affected person decided to file a lawsuit against the INSS.
According to the lawyer who handled the case, Alma Pantiga, the organization argued its refusal by alleging that “the periods of enjoyment of the benefit, once requested and recognized, should be considered unalterable, unless the occurrence of exceptional circumstances can be proven.”
An unprecedented case in Spain
To prepare the lawsuit, Pantiga searched for similar judicial resolutions and verified that there were no precedents in Spain, except one: ruling number 4873/2023, of July 26, of the Superior Court of Justice of Catalonia (Social Chamber), which analyzed a very similar case.
In that resolution, the court established that, “once the period of enjoyment of paternity initially communicated to the INSS and granted by it has begun, the parent other than the mother may modify it, with prior agreement with the company, and thereby also modify the payment period of the subsidy for the birth and care of the minor.”
The law requires communicating the enjoyment of the leave to the company at least 15 days in advance, but does not specify that the dates cannot be modified later, as long as two conditions are met: that the minor is less than 12 months old and that the mandatory six weeks immediately after childbirth have already passed.
As the lawyer explains, article 48.4 of the Workers’ Statute only conditions the exercise of this right—once those six mandatory weeks have been exceeded—on the leave being distributed at the will of the parent, in accumulated or interrupted weekly periods, from the end of the mandatory suspension until the son or daughter turns one year old.
Furthermore, Pantiga recalls, the rule only requires that the worker notify the company of the exercise of this right at least fifteen days in advance, in the terms established, where applicable, in the collective agreements.
A ruling with impact beyond the specific case
Thanks to these allegations, the Social Court number 2 of Oviedo ruled in favor of the plaintiff, who will finally be able to enjoy the more than 40 days of paternity leave that were pending.
For Pantiga, this is a “very relevant” ruling, since it opens the door for other people to claim in similar situations, by setting a precedent in Asturias against a restrictive interpretation of the right to leave for birth and care of a minor.
