Spain’s Constitutional Court recently ruled that the current law on childcare leave as it applies to single-parent families is unconstitutional. The Court declared that the law unfairly treats children in single-parent families differently from those in two-parent families, and that a single parent should be entitled to the same amount of leave as two parents in a two-parent family.
Based on the judgment, effective from 6 November 2024, government-paid childcare leave for biological mothers in single-parent families increased from 16 weeks to 26 weeks.
Background
In Spain, paternity and maternity leave, which are fully funded by social security, fall under the scope of childcare leave provisions in the Workers' Statute of 23 October 2015 and the General Social Security Act of 30 October 2015 (collectively, the “Childcare Leave Provisions”).
The Workers’ Statute was amended by Royal Decree-Law 6/2019 of 1 March 2019 to introduce the current regime which grants equal periods of childcare leave to both parents. Every new parent is entitled to a maximum of 16 weeks of childcare leave, the first six of which are mandatory immediately after childbirth. The 16 weeks may be extended by two additional weeks (one for each parent) in the case of a child born with a disability or in the event of multiple births or adoptions.
As the leave is non-transferable, two-parent families could take up to 32 weeks of paid leave under the default entitlement, while single-parent families would only be entitled to 16 weeks. The Childcare Leave Provisions do not specifically address childcare leave and social security benefits for single-parent families.
Key details
The question of whether the Childcare Leave Provisions are unconstitutional was presented by the Social Chamber of the Superior Court of Justice of Catalonia, which took the position that:
The Childcare Leave Provisions unfairly discriminate against children from single-parent families as they will receive less care time than children from two-parent families, even though they have similar needs; and
There is indirect discrimination based on sex, as the Childcare Leave Provisions would disproportionately affect female employees, as the majority of single parents are mothers.
The Constitutional Court agreed, finding the Childcare Leave Provisions unconstitutional. It recognized that while Royal Decree-Law 6/2019 of 1 March 2019 had amended legislation to promote equality for women and men in relation to childcare leave after childbirth, it failed to foresee the possibility for a biological mother in a single-parent family to extend childcare leave to include the period available to a second parent.
Through this omission, the Childcare Leave Provisions created a difference in treatment between children from single-parent and two-parent families, ignoring the negative consequences on children born to single-parent families.
The Constitutional Court said that as the declaration of unconstitutionality is linked to an omission of the legislator, it did not declare the Childcare Leave Provisions null and void, stating that it is up to the legislator to carry out amendments to remedy the omission based on the Constitutional Court’s judgment.
The Constitutional Court also specified that, as long as the legislator does not rule on the matter, childcare leave under the Childcare Leave Provisions must be interpreted for single-parent families by adding together the leave for the biological mother (16 weeks) and the leave provided for a different parent (ten weeks, as the Constitutional Court excluded the first six weeks on the basis that the first six weeks of each parent are taken at the same time immediately after childbirth).
Accordingly, from 6 November 2024, being the date of delivery of the judgment, biological mothers in single-parent families are entitled to a total of 26 weeks of childcare leave, which provides newborn children in single-parent families with the same total period of care time available to newborn children in two-parent families.
Lockton comments
While the Constitutional Court ruled that biological mothers in single-parent families are now entitled to a total of 26 weeks of government-paid childcare leave, it is unclear how this will be implemented in practice by the National Social Security Institute, which is responsible for administering childcare leave benefits in Spain.
In addition, the Constitutional Court only ruled on the Childcare Leave Provisions that apply on the birth of a child by a single parent, and not in cases of adoption by a single parent. Under the Workers’ Statute, an adoptive parent is entitled to 16 weeks of leave, six of which must be taken consecutively and full-time on a mandatory basis immediately after the court or administrative decision on the adoption.
The judgment is expected to lead to legislative changes to expressly grant additional childcare leave for single-parent families. The Lockton Global People Solutions compliance team will monitor the release of any proposed legislation and provide updates accordingly.
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