Supreme Court sets out doctrine on eight-week parental leave

The Supreme Court has handed down a highly relevant ruling (STS 26 January 2026) that definitively clarifies two essential aspects of the parental leave provided for in article 48 bis of the Workers' Statute: the way in which the leave is taken and its calculation for holiday purposes. The ruling, which resolves a collective dispute brought by several trade union organisations against a healthcare institution, has become a benchmark pronouncement on the correct application of this leave, a transposition in Spain of Directive (EU) 2019/1158 on the reconciliation of family and professional life.

Starting with an analysis of the legal configuration of parental leave, which grants workers an individual right to take up to eight weeks, continuous or discontinuous, to care for children or foster children up to the age of eight, it analyses the employer's practice of requiring that such leave, when discontinuous, be taken only in periods of one full week and, likewise, its refusal to recognise the time spent on leave as entitlement to holiday entitlement.

In relation to the first disputed point, the Supreme Court confirms the criterion of the Catalan Supreme Court, holding that the wording of Article 48 bis ET, by expressly referring to "eight weeks, whether continuous or discontinuous", means that the leave, when not continuous, must be taken in full weeks and not in shorter periods. The Chamber emphasises that the legislature deliberately opted for this unit of time, which is consistent with the structure of other leave linked to work-life balance, such as childbirth and childcare leave, which are also organised in weekly periods. In this way, the High Court expressly rules out the possibility that leave may be taken in single days or periods of less than seven days.

In relation to the second controversial point, the judgment focuses on the effect of parental leave on holiday entitlement. In contrast to the previous ruling of the SCJ, the Supreme Court overturns this point and declares that the time spent on parental leave must be considered effective working time for the sole purpose of accrual of holiday entitlement.

The Court starts from the interpretation harmonised with Directive (EU) 2019/1158, article 10 of which obliges Member States to guarantee the maintenance of rights acquired or in the process of being acquired during parental leave, including those linked to the right to paid annual leave. The Supreme Court reasons that this Community requirement imposes an extensive reading of the guarantee, even when the Workers' Statute does not expressly mention it in relation to parental leave under Article 48a.

Likewise, based on the purpose of the leave, which is to promote co-responsibility and facilitate reconciliation without entailing a loss of employment rights, the Supreme Court concludes that excluding the period of parental leave from the calculation of holidays would be contrary to the spirit and purpose of the EU regulation.

Therefore, through this ruling, companies are obliged to adapt their internal policies and criteria for managing leave and holidays. Firstly, they must allow parental leave to be taken in full weeks when it is requested discontinuously, avoiding any lesser fractionation. Secondly, they must fully count the time of parental leave as a period of leave, without the possibility of a proportional reduction.

Article written by ECIJA Madrid Labour Law Department.