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The National Court establishes that the new 4-day leave due to force majeure must be paid

MADRID, 14 Feb.

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The National Court establishes that the new 4-day leave due to force majeure must be paid


The Social Chamber of the National Court has issued a ruling establishing that the new 4-day leave for reasons of force majeure must be paid.

The ruling responds to a lawsuit filed by USO, CIG and CGT, to which other unions later joined, against the contact-center company Unisono.

This company initially considered that the leave should be paid, but subsequently informed the unions that, after "reviewing the provision in depth", said leave should be unpaid unless the collective agreement, or failing that, the agreement with the company, will indicate otherwise.

As explained by USO in a statement, the union demand presented to the National Court the need to clarify whether this new leave, included in article 37.9 of the Workers' Statute, should be paid or not.

"USO delegates and members in other companies, such as Leroy Merlín or Iberia, were already suffering from their refusal not to grant, but to pay, the permit," the union denounced, highlighting that with this ruling, with effects for all sectors and companies, it is made clear that this leave must be paid to the worker.

The article that regulates this permit in the Workers' Statute establishes verbatim, in a first paragraph, that "the worker will have the right to be absent from work due to force majeure when necessary for urgent family reasons related to family members or cohabitants, in the event of illness or accident that makes their immediate presence essential."

In a second paragraph of the article it is added that "workers will have the right to be paid for the hours of absence for the reasons provided for in this section equivalent to four days a year, in accordance with the provisions of the collective agreement or, failing that, , in agreement between the company and the legal representation of the workers, with the workers providing, where appropriate, accreditation of the reason for absence."

The Court, in its ruling, indicates that, although the wording of this second paragraph "can be improved", it is clear "that the first paragraph thereof recognizes a right for the person who is absent from work for the foreseen reasons to maintain their right to retribution."

Likewise, it is understood that the reference made to the collective agreement or the company agreement in that paragraph "is only to determine the form of accreditation of the reason for the absence, without prejudice to the fact that by application of the principles of minimum standard and higher standard favorably, through said collective agreements either additional rights can be recognized or the terms of the right recognized by the law can be improved."

But, in addition to the literal articles, the Court justifies its ruling in a historical and finalist analysis in which it mentions Directive 2019/1158 on Reconciliation of Family and Work Life, the Family Law and the Government's intention that these 4 days of absence due to family force majeure are paid.

This ruling on the 4-day leave for reasons of force majeure joins another recently issued by the same Chamber in which it determined that the 5 days of leave for various cases of illness, accident or hospitalization of family members, approved in the Royal Decree -law 5/2023, should be considered business days, not calendar days.