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Global employment briefing: Spain, February 2017

  • United Kingdom
  • Employment law


Paternity leave has been extended to four weeks

As of 1 January 2017 paternity leave has been extended from 13 days to 4 weeks, in accordance with Act 9/2009 of 6 October, which ruled the extension of paternity leave in cases of birth, adoption or fostering care. The application of this law was suspended in 2009 and is now, finally, being implemented.

Can a dismissal be void on disability grounds due to a temporary physical injury?

Pursuant to the decision of the European Court of Justice dated 1 December 2016, the fact that the employee is terminated during his sick leave –when it could be considered as a long term sick leave- could be deemed discriminatory and therefore void (under Spanish law).

The EU Court of Justice explains the concept of “disability” within the meaning of Directive 2000/78 and under the UN Convention as a limitation which results in particular from long-term physical, mental or psychological impairments. The expression “person with disabilities” from article 5 of the Directive 2000/78 is interpreted as encompassing “all persons suffering from a disability”, and that may also cover physical injuries caused by an accident. The issue in question was whether a reversible injury (the ex-employee was expected to recover and therefore the injury was temporary in nature) is considered “long term”.

The EU Court of Justice concluded that, as “long-term” is not defined or clarified in the UN Convention nor in the Directive 2000/78, an employee with a temporary inability for work, for an unknown period of time as the result of a work accident, may (depending on the facts) be classified as “long-term” within the meaning of Directive 2000/78, and consequently, the dismissal of such employee may be null and void under Spanish law.