The Supreme requires compensation to a father who was denied breastfeeding permission because the mother did not work

The Supreme requires compensation to a father who was denied breastfeeding permission because the mother did not work

A company must pay 6,000 euros in compensation to a worker who was denied breastfeeding permission because his wife did not work. The ruling of the Supreme Court, which confirms a previous conviction, is relevant because it unifies doctrine and recognizes this right to the employee with the law in force before equalization of birth permits of children approved in 2019, with an interpretation of the magistrates in favor of equality.

The events date back to 2018. The employee asked the company, Mecalux SA, to enjoy breastfeeding leave due to the birth of her baby. The company denied it. "We must indicate that the aforementioned permit is not expected to be exercised in those cases in which the other parent does not work, as is the case with him," the company replied, according to the Supreme Court ruling on July 12.

After two courts recognized this right to the worker, the last one being the Superior Court of Justice of Asturias, which also accepted compensation of 6,000 euros for the non-material damage caused by the employee, the company appealed the sentence before the Supreme Court.

The magistrates of the high court, with Antonio Vicente Sempere as rapporteur, have ruled on the subject in a recent sentence and have unified doctrine, as there are two contradictory sentences in this matter.

Currently, this debate does not exist. After the 2019 reform, the legislation makes explicit the permission of workers to be absent from their jobs for breastfeeding hours (article 37.4 of the Workers' Statute) recognized individually to both parents so that it can be enjoyed by both. There is only one exception: if they both work in the same company, the company can limit "their simultaneous exercise" for justified operational reasons. But in 2018 the current regulations were not so guaranteeing.

The Supreme Court ruling recalls that the leave for breastfeeding hours had been modified in several reforms since 1980. From being an exclusive leave for working mothers at the beginning, it had been gradually expanded. In 2018, with the law in force since the 2012 labor reform, it had already become "an individual right of workers, men or women", but it was specified in the next line that "it can only be exercised by one of the parents in if they both work.

With this premise, the company justified the refusal to the worker. Mecalux argued that "the other parent is in a position to perform the functions that are pursued with that permission" (infant care) and, furthermore, "otherwise, a comparative offense would be incurred with the rest of the staff members in which only one of the members can exercise the nursing permit if both work", collects the sentence.

The magistrates of the Supreme disagree and agree with the employee. To this end, they argue, among other reasons, that the 2012 reform had corrected the wording to make permission explicit as "an individual right" of workers, so that "there is, on the contrary, no hint that the ownership of the right in question to the circumstances of the other parent".

The high court also recalls that in the wording of the law "the consideration of what happens when one of the parents does not work" is completely omitted. Therefore, it is not possible to impose a restriction on the right that "does not exist in the norm" or limit it with an "expansive" interpretation.

It should also be noted that, among the reasons for recognizing this right to the father, the magistrates point out several issues in favor of equality. "The general objective of co-responsibility in family tasks advises an interpretation favorable to the indistinct exercise of the right. The argument accepted in the referential sentence collides with this idea, according to which the mother (being unemployed) can take care of the minor and it makes no sense for the father to activate his permission", contemplates the sentence.

The Supreme Court analyzes the issue from the "principle or hermeneutical canon of gender perspective", since it recalls that the Organic Law of Equality establishes that "equal treatment and opportunities between women and men is an informing principle of the legal system and, as such, it will be integrated and observed in the interpretation and application of legal norms".

"This interpretative guideline comes to reinforce the decision that we adopted", maintain the magistrates. "Restricting lactation leave to the male, under the pretext that his wife and mother of the minor does not carry out productive activity and can take care of him carries the danger of perpetuating traditional, sexist roles, and contrary to the equalizing objectives of the LOI" ( equality law), explain the judges.

The Supreme thus confirms the ruling, rejecting Mecalux's appeal, to which it also imposes the costs of the legal process amounting to 1,500 euros. elDiario.es has asked the company about the failure, but has not commented on it.

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