A judge applies new criteria to grant restaurant owner parental leave

A singular case not foreseen in the law applied by the judge a new criterion. Vigo Social Court 2 proclaims a father’s right to enjoy ten weeks paternity leave although he did not apply for the first mandatory six-week period immediately after the birth of your child. The “weird situation” here is that this man and his wife they run a restaurant and when she took maternity leave after birth, she chose not to do it in the first place to keep the business open.

Over time, his wife asked for time off when she returned to work, but the National Institute of Social Security (INSS) refused. The magistrate disagrees with this body and agrees with the plaintiff: he does it with due consideration. agree “organizational reasons” not only in terms of labor, but also in the application of the principle of “effective equality” of women and men assumes that there is “discrimination” in the assumption of responsibilities relative. The worker’s claim, as he sums it up, is a “conciliatory measure” that guarantees “joint responsibility” between him and his partner for the care of his son.

The sentencing of Judge Germán Serrano, who is also Vigo’s dean judge, begins by stating that the plaintiff, who is registered under the special Social Security regime for self-employed, runs a restaurant with his wife, who is also self-employed. . After becoming a parent in April 2021, she immediately took 16 weeks of maternity leave, but the child with the same duration had not even received the first six weeks, which should have been taken uninterrupted immediately after Birth. made this decision not to close the institutionhe also had workers under his responsibility.

“You have no right to enjoy the rest afterwards”

When his wife returned and took over the restaurant, that was when the father requested the other ten weeks of parental leave available after the birth. Social Security denied it. This second period is “inextricably” linked to the first six weeks.: If these are not taken, the administration asserted that “there is no right to benefit from the rest afterwards”.

The judge agrees with the plaintiff. “The regulation does not foresee this special situation, which would frame the closure of the workplace if two self-employed workers working for the same company come together and both parents request leave at the same time,” he states. However, continues the Labor Code, the assumption that both parents serve “as employees” in the same businessallows to limit the simultaneous application of withdrawal for “organizational reasons”. So by analogy, the judge concludes that in this couple’s case these organizational reasons agree. If both had taken leave at the same time, this would have required the company – the restaurant – to “close” with “economic damage to family and other workers”. […]”.

Demand forecasting says, “remove a barrier” for a situation “not foreseen by the legislator”. And it enforces the “effective equality” of men and women proclaimed by the law on the right to reconcile personal, family and work life. Condemning the INSS and declaring the father’s right to receive economic benefits, the judge said, “Forcing a worker to keep the employment relationship alive, leaving behind a recognized right of reconciliation, entails discrimination for the person exercising his right to assume family responsibilities.” for the birth and care of minors.

the keys of the sentence

A “weird” course that is not “prescribed” in the law

“The regulation does not foresee this special situation, namely, that two workers included in the special regime for self-employed persons working in the same company establish a framework for closure if both parents request leave at the same time. […]; estimating this demand removes the obstacle to a case not foreseen by the legislator. […]”.

The right to take on “family responsibilities”

“Forcing the worker to keep the employment relationship alive, leaving behind a recognized right of reconciliation, requires discrimination for the person exercising his right to assume family responsibilities. […] In this case, there are also organizational reasons for forcing simultaneous exercise of the right. [padre y madre a la vez] will cause the company to close [el restaurante]with economic damage […]”.

Source: Informacion

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