What it is, how it works, and who can benefit from the eight-week parental leave
Since its inclusion in the Spanish legal framework on June 30, 2023, the eight-week parental leave has been surrounded by uncertainty and controversy due to the lack of clarity with which it was incorporated into national legislation.
The content of this leave is set out in Article 48 bis of the Workers’ Statute (ET), which states the following:
“Employees shall have the right to parental leave for the care of a son, daughter, or fostered minor (for a period exceeding one year) until the child reaches eight years of age.
This leave, which shall not exceed eight weeks—whether continuous or discontinuous—may be taken on a full-time or part-time basis, in accordance with the regulations established.
This leave constitutes an individual right of workers, whether men or women, and cannot be transferred.
The employee shall specify the start and end dates of the leave or, where applicable, the periods of use, and must notify the company at least ten days in advance, or within the period specified by collective agreements, except in cases of force majeure, taking into account both the employee’s circumstances and the company’s organizational needs.
If two or more employees exercise this right in relation to the same child, or in other cases defined by collective agreements where the simultaneous use of parental leave would seriously disrupt the company’s operations, the employer may postpone the granting of the leave for a reasonable period, providing written justification and offering an equally flexible alternative period.”
It is important to note that, although Article 48 bis of the ET refers to this as a “leave,” it is also expressly included as one of the grounds for suspension of the employment contract, through the addition of section “o” in Article 45.1 of the ET, which states:
The employment contract may be suspended for the following reasons:
- Parental leave
To eliminate any doubts regarding social security contributions during these weeks of leave or contract suspension, the Spanish Social Security Treasury (TGSS) clarified in its RED Bulletin No. 2/2024 that the employee’s registration and contributions must remain active throughout the leave period.
However, despite the clarity on registration and contributions, the first area of contention concerns the way in which the leave is taken. If taken on a full-time basis, Article 48 bis provides full legal coverage. But if taken on a part-time basis, doubts remain, as this modality still lacks regulatory development.
Beyond this, the most significant issue—and the one generating the most debate—concerns remuneration.
The EU Directive 2019/1158 of June 20 on work-life balance for parents and carers, which inspired this Spanish regulation, establishes that parental leave must be paid. Although Spain had until August 2, 2024 to legislate at least two weeks of paid parental leave, no explicit provision has yet been included in national law. This legal vacuum not only creates uncertainty but also places Spain in breach of the European Directive.
Specifically, Article 20.2 of the Directive states:
“(...) With regard to the remuneration or allowance corresponding to the last two weeks of the parental leave referred to in Article 8(3), Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 2 August 2024 at the latest. They shall immediately inform the Commission thereof.”
In the absence of explicit regulation, it is our courts that are issuing rulings, resolving the claims filed by different groups.
Thus, as of today, there are already three judgments confirming the obligation for it to be remunerated.
The three judgments issued to date are those of the Administrative Court No. 1 of Barcelona (judgment of November 28, 2024), the Administrative Court No. 1 of Cuenca (judgment of January 27, 2025), and the Administrative Court No. 4 of Murcia (judgment of March 23, 2025).
It should be noted that all the rulings mentioned in the previous paragraph address claims filed by public sector employees. Even so, we understand that these decisions open the possibility for other judgments with similar conclusions to be issued soon by labor courts, in relation to claims filed by private sector employees.
It is worth noting that all three rulings relate to public sector employees. However, these decisions open the door for labor courts to issue similar judgments concerning private sector employees in the near future.
Lastly, it should be recalled that the exercise of this right is compatible with other leaves provided under Article 37 of the ET.
Furthermore, the law establishes that any dismissal for objective reasons during parental leave shall be considered null and void, as stated in Article 53.4(a) of the ET.
Similarly, any disciplinary dismissal during the leave shall also be null and void, in accordance with Article 55.5(a) of the ET.
The Employment Advisory team will continue to monitor developments and updates related to this matter closely.
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