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Labor Conflict: Leave to care for children and reinstatement

On February 21, the Supreme Court issued a ruling that confirms once again that HR departments require great prudence in the management of people, always duly advised by expert offices in Labor Law.
Above all, we must bear in mind that we find ourselves in a position in our Labor Law in which the protection of women in the face of motherhood and in general against any discriminatory behavior by the employer takes priority.
In this case, the company rejected the request for reinstatement made by a worker who had been on leave for more than 2 years to care for one of her children. The employee, as soon as she received the refusal, filed a lawsuit for dismissal, demanding that it be declared null and void due to discrimination.
The company argued that there had been no dismissal, since it had only been told that there was no vacancy at that time and that, in the event that this argument was not addressed, effective reinstatement could only be granted when there was a vacancy in the company. , which would not occur in the assumption.
The Court, in this protection of working mothers, rejects the company's arguments and resolves the case by referring to the constitutional doctrine developed around regulatory measures aimed at facilitating the reconciliation of family life and professional life.
With these considerations, it concludes that in accordance with article 46.3 of the Workers' Statute, after taking leave to care for a child, the right to re-enter the company is unconditional and automatic, whether in the same job (if the period of leave has not exceeded one year in duration), or in a similar job position (if the period of leave has exceeded one year in duration), without being subject in any case to the existence of a vacancy in the company.
This ruling is equivalent to the business obligation to create a position "ex novo" for whoever joins, accepting the oversizing of the workforce or proceeding to the objective dismissal of those who are redundant from that moment on.
On the other hand, in the future, companies have to be aware of the significance of this court ruling, especially if we take into account that the 80% of our companies are SMEs and this situation can greatly damage their accounts.
Therefore, HR, from the moment an employee requests this type of leave, must count on his or her reinstatement, in any case, and adapt its workforce for the moment in which it occurs.

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