Whilst future parents of both sexes can now enjoy weeks of mandatory paid leave to look after their child at the moment of birth, the Social Chamber of the Superior Court of Xustiza de Galicia (TSXG) has confirmed, for the first time, the right of workers to enjoy paid leave to attend childbirth preparation techniques.
The Superior Court of Justice of Galicia has endorsed for the first time the right of a worker to enjoy leave to attend classes on childbirth preparation techniques. And it has recognized that not only employees must enjoy these permits, but they must also be paid.
“It is one more step in co-responsibility and in achieving equal conditions for non-pregnant parents, mostly men, not only during parenting, but also during the gestation process, for which it is very important to have a paid leave,” says Henrique Landesa Martínez, a lawyer who obtained the ruling.
The first instance ruling, however, does not grant men permission to attend prenatal exams, also requested by the plaintiff. The court agrees “with the correct criteria of the lower court” of not extending this permission to male workers and other parents who are not surrogates. Therefore, it has dismissed the appeal filed by the legal representative of the company’s staff against the ruling of the Social Court number 4 of Vigo, in which he demanded that permission for prenatal examinations also be recognised.
The Social Chamber of the TSXG indicates in the resolution that it agrees with the arguments of the first instance judge, who considers that both permits are, in their origin, in the Occupational Risk Prevention Law of 1995, exclusively for women, but he highlights that “the normative, jurisprudential and doctrinal evolution that has occurred since then” leads him to reach the conclusion that the permit for childbirth preparation techniques “must be extended to male workers, since otherwise it would be discriminatory based on sex”, in application of the doctrine contained in the ruling of the Court of Justice of the European Union (CJEU) of September 30, 2010, Roca Álvarez Case, C-104/09.”
The magistrates of the Galician high court endorse the difference between one permit and another, as they emphasise that permission for prenatal examinations “is a maternity right that, in accordance with the authorisation granted in Directive 92/85 of the European Community, can recognise only pregnant women, and in these terms it has been recognised in the Occupational Risk Prevention Law, the Worker Statute and the Basic Statute of Public Employees.” And, regarding the permission to attend childbirth preparation techniques, they affirm that “it does not find authorisation for its sexual nature in Directive 92/85 of the European Community”, so they conclude, based on the Roca Álvarez doctrine, that It is “a right of conciliation that, as such, cannot have a sexual nature, otherwise it would violate the prohibition of discrimination.”
The Social Chamber adds in the ruling, regarding permits for childbirth preparation techniques, that “the very wording of the rules does not exclude working parents and other non-pregnant people, therefore, while obviously these cannot be subject to prenatal leave, they can attend childbirth preparation techniques, and from the perspective of a successful end to the maternity/pregnancy process, this is usually a healthy recommendation.”
The resolution is not final, since an appeal can be filed before the Supreme Court.
