Paid leave has always been calculated from the same day of the event (a marriage, a birth or a death), regardless of whether that day was a work day, for example, from Monday to Friday, or a weekly rest day, for example, a Saturday or a Sunday, or a bank holiday.
Therefore, if a worker (Mr White) had 2 days paid leave for the birth of his son and this birth occurs on a Saturday, it had to be enjoyed by Mr White on that same Saturday and Sunday, despite the fact that he had already been assigned those 2 days as days off for his weekly rest. So Mr White had to return immediatedly to his job on the Monday, because his two days of paid leave overlapped with his weekly rest days. Consequently, Mr White had exactly the same amount of time to rest that he would have had if he had not had a son because his 2 days paid leave coincides with 2 weekly rest days.
Up to now, this way of calculating paid leave days was uncontroversial and accepted by the labor courts. Consequently, it was applied in all cases, unless the collective agreement applicable to the specific company already stipulated expressly that the paid leave started on a work day.
However, the recent Judgment of the Supreme Court of February 13, 2018 made a new ruling, establishing that these permits for paid leave must begin on the working day immediately after the event, even if the agreement collective does not expressly stipulate it.
Thus, according to the Supreme Court’s new ruling, the permit for Mr White’s paid leave would be enjoyed on Monday and Tuesday, which are both working days immediately after the birth of Mr White’s son instead of counting the weekend already assigned Mr White as his weekly rest. Therefore, with the new ruling the day Mr White returns to work is Wednesday, with the old ruling it would have been Monday.
This new ruling by the Supreme Court of February 13, 2018 is based on the following reasons:
– “The precepts on ´paid leave` shows us that the permits are granted to be enjoyed on work days, because on weekly rest days there is no need to request them because they are not days for the purpose of work”
– “The permit is given to be absent from work on a work day, because on weekly rest days it is not necessary.”
– “Consequently, if the day which justifies the permit occurs on a working day, it is clear that the permit for marriage, birth or death of a relative will not be initiated until the next work day.”
– “In regards to the initial day of enjoyment of the permits that occupy us here, it must be understood, what has been said before, that as the agreement speaks of ‘paid leave’ the initial day of enjoyment of these permits cannot be a vacation day. It must be the first working day that follows the day on which the event (e.g. marriage, birth or death) giving rise to the permit occurred, since the agreement does not say anything else, and only indicates that the right can be enjoyed only from the point in time that the event occurs. Moreover, any another solution could lead to the absurdity of effectively depriving the worker of paid leave, in cases where the event occurs at the beginning of weekly rest days. This is contrary to the spirit of art. 37-3 of the ET and to the conventional norm. ”
In short, this change in the ruling by the Supreme Court increases rights for workers, which, if confirmed in the future by another ruling by the Supreme Court, would generate jurisprudence on the subject, and, therefore, would establish a general binding criterion for judges and labour courts.
