Supreme Court upholds flexibility in the commencement of hospitalisation leave

The Supreme Court ruling of 4 February 2026 addresses a relevant aspect of the legal regime of paid leave regulated in article 37.3 b) of the Workers' Statute, focusing exclusively on determining whether the commencement of such leave can be compulsorily linked to the day of the event giving rise to the leave or to the first working day immediately following it. The dispute arose out of a challenge to a company instruction which established as an invariable guideline that leave must commence on the first working day following the event giving rise to it, both in cases of serious accident or illness, hospitalisation or surgery without hospitalisation requiring home rest, and in cases of force majeure for urgent family reasons.

According to the judgment, neither the Workers' Statute, nor the applicable collective agreement, nor Directive (EU) 2019/1158 contain any provision determining the initial time for taking leave. That absence of legislation leads the Court to interpret the institution. The reasoning is based on the fact that the purpose of the leave provided for in article 37.3 b) ET is to meet the care needs arising from a serious illness, hospitalisation or convalescence at home, situations which are frequently prolonged in time and are not exhausted in the days immediately following the event giving rise to the entitlement.

The judgement recalls its reiterated doctrine to underline that a distinction must be made between hospital discharge and medical discharge, and that the need for care may extend beyond the time of admission or intervention. This means that the five days of leave do not necessarily have to start immediately after the causal event, but can be adapted to the actual need for care. The Court insists that the leave is justified by the persistence of the pathological situation and the care needs of the affected family member.

This purpose would be compromised if a rigid start linked exclusively to the time of the event were to be imposed automatically.

Furthermore, the judgement contextualises this interpretation in the sociological framework of the Mediterranean welfare model, in which families play a central role in care. From this perspective, automatically linking the start of leave to the causal event would reduce its protective potential by preventing proper planning of care, which often requires coordination between different family members or organisational adjustments that do not necessarily coincide with the day of the initial event.

The conclusion reached by the court is as follows: "In short, what follows from what has been said is that the family care leave referred to in art. 37.3 b/ of the ET (EDL 2015/182832), cannot be administered in such a way that its commencement is necessarily linked to the event on which it depends, without thereby leaving room for a rational distribution that allows for planned and more effective assistance of the person in need depending on the concurrent circumstances."

Starting exclusively from this question - the determination of the start of leave - the Supreme Court concludes that a rigid criterion cannot be imposed that obliges leave to be taken from the day of the causal event or from the first working day immediately following when neither the law nor the collective agreement establishes this. The proper interpretation of Article 37(3)(b) of the Employment Relationship Act (ET) requires flexible use to be permitted in accordance with the purpose of the leave and the specific circumstances of the care required. Consistent with this, the Chamber dismisses the appeal and upholds in its entirety the judgment of the court of first instance, which had declared the instruction to be unlawful.

Article written by ECIJA Madrid Labour Law Department.