Preliminary draft of the new Family Law

PRELIMINARY:

On 28 March 2023, the Council of Ministers approved the preliminary draft of the Families Act, which included significant new provisions in the field of labour relations.

We are faced with new legislation introduced by the Government, which aims to address the difficulties workers face in balancing their personal, family and working lives with the care of their children and/or relatives.

We can highlight two important new developments:

• Introduction of new paid leave entitlements
• Introduction of new grounds for the nullity of dismissals

In addition to the new grounds for leave and nullity in the dismissal of workers, which will be incorporated into the Family Law and which will amend the relevant articles of the Workers’ Statute governing this matter, it is necessary to endorse other amendments, which are by no means of lesser importance and which also have an impact on the area of work-life balance.

Consequently, with regard to the recognition of these new forms of paid leave, paragraph (c) of Article 4.2 of the Workers’ Statute has been amended to introduce and recognise the right of workers to not to be discriminated against for exercising their rights to a work-life balance or shared responsibility for family and working life.

Furthermore, with regard to requests for a reduction in and adjustment of working hours for work-life balance reasons relating to the care of a child and/or family members, at the employee’s request, the negotiation period for exchanging alternative proposals regarding the requested adjustments and reductions is reduced, limiting it to «as quickly as possible» and, in any event, to a maximum of 15 days, whereas previously it was 30.

It is extremely important to conduct the negotiations; otherwise, the request will be deemed to have been granted if no reasoned objection is raised within this period.

Extension of the leave provisions set out in Article 37 of the Workers’ Statute

• Extended from 2 to 5 days:

Five days due to a serious accident or illness, hospitalisation or outpatient surgery requiring the spouse, civil partner or relatives up to the second degree of kinship by blood or marriage to rest at home, as well as any other person, apart from those mentioned above, who lives with the worker at the same address and who requires the worker’s active care.

(b) (i) Two days following the death of a spouse, civil partner or relatives up to the second degree of kinship by blood or marriage. In the event of travel, this shall be extended by two days.

• Extension of the breastfeeding period from 9 to 12 months of the child’s age 

Where biological, adoptive, foster or temporary carers exercise this right for the same duration and under the same conditions, the period of leave may be extended until the infant reaches twelve months of age, with a proportional reduction in pay from the end of the ninth month.

• Inclusion of a new paragraph 9: 

The right to take leave from work on grounds of force majeure when necessary for urgent and unforeseeable family reasons, or in the event of illness or an accident that makes the employee’s immediate presence essential, for a period equivalent to four days per year; the employee must provide evidence of the reason for the absence.

Changes to maternity and childcare leave as set out in Articles 48.4 and 6 of the Workers’ Statute

The right of the biological mother to take maternity and childcare leave in advance up to four weeks before the expected date of birth. The right of a parent other than the mother to bring forward up to ten days in advance.

• Introduction of parental leave:

The right of workers to parental leave to care for a son, daughter or foster child for a period of more than one year, until the child reaches the age of eight. This leave may not exceed eight weeks and may be taken continuously or intermittently, on a full-time or part-time basis. The employer must be given 10 days’ notice.

• Gradual extension of parental leave: 

2023: the leave will last for six weeks.

2024: the leave will last for eight weeks.

** A regulation is introduced new leave of absence in Article 46(3) of the Workers’ Statute, which recognises the right of a a period not exceeding two years to care for a relative up to the second degree of kinship of the spouse or civil partner provided that there are no blood relatives up to the second degree of kinship of the deceased who are eligible for the leave described in the preceding paragraph.

Grounds for declaring the termination of an employment relationship by dismissal null and void

A new ground for nullity is introduced in sections 53.4 and 55.5 of the Workers’ Statute, on the basis that contract terminations by dismissal of workers who are currently taking the aforementioned new types of leave shall also be null and void, and which covers both the period of suspension whilst on leave and the return to work following the end of that leave, provided that no more than twelve months have elapsed since the date of birth, adoption, foster care with a view to adoption or temporary foster care.