The Audiencia Nacional (A.N.) recognizes the right of the father to enjoy the Lactation Permit. Accumulated after the end of paternity leave. The recognition came in its judgment of last 19/07/2018 based on the provisions of Article 37.4 of the Workers Statute:
… “This leave constitutes an individual right of the workers, men or women, but it can only be exercised by one of the parents if both work”.
Certainly this precept recognizes, in cases of birth, adoption, guardianship for the purpose of adoption or fostering, the right to one hour’s absence from work. Or a reduction of their working day by half an hour or accumulate it in full working days. As established in the conventional norm, or improve it by business agreement.
Also, it recognizes that this leave can only be exercised by one of the parents when both work. This constitutes an individual right of the workers.
The A.N. establishes that there is no legal basis for the right to Lactation Permit to be denied because the other parent is on maternity leave.
Lactation Permit: Incompatibilities
Incompatibility only affects the simultaneous exercise of both rights (maternity/paternity and breastfeeding) by the same parent. If this right is denied (until the end of the maternity leave taken by the mother), the duration of the Lactation Permit would be reduced. This would make it impossible to transfer part of the mother’s leave to the other parent. It could even be understood as discriminatory on the basis of sex (article 14 C.E.). Taking into account the co-responsibility of both spouses in the care of their children.
Therefore, there is no legal limitation on the father’s enjoyment of Lactation Permit. Even when the mother is on maternity leave.
Recently we heard another news related to the exemption of the IRPF (Personal Income Tax) of the Maternity/Paternity Benefits dictated by the Supreme Court. Both sentences, deepen in the equalization of the rights of maternity/paternity of the fathers.
Arrabe Integra
LabourConsulting and HR Management Dpt.
