Marriage leave: Find answers to your questions in this article

One of your employees is getting married this summer, and you want to offer him compensation in exchange for waiving marriage leave.

The situation you raise is feasible since there is no express prohibition of "selling" the paid leave to which your employee is entitled, unlike what happens in other cases (such as, for example, the substitution of vacation for financial compensation).

Note. Therefore, in the same way that by means of an agreement between the company and the employee the days of leave for marriage can be postponed in time (being able to enjoy the leave at a time other than the marriage), you can offer an economic compensation in exchange for the employee's commitment not to enjoy the paid leave for marriage.

The work that your employee performs during the days on which he/she should enjoy the marriage leave will not be considered as overtime. That is to say, if your work schedule is well prepared, the hours actually worked will end up coinciding with the annual workday set by your collective bargaining agreement (no services will be rendered beyond the regular workday; you will only have agreed not to exercise a right granted by the Workers' Statute).

Note. Thus, when agreeing on compensation, you will not have to pay overtime. In this case, although you could agree on a lump sum:

• An adjusted alternative is to pay him the amount of the hourly wage multiplied by those hours he will work in exchange for waiving the leave. For example, if the employee's annual salary is 35,000 euros and his annual working hours are 1,772 hours, the value of each ordinary hour will be 20.33 euros.
• If your employee gets married on a Saturday, the paid leave starts on Monday. Thus, if he gets married on Saturday, June 30, the leave will begin on Monday, July 2 and will last until July 16 (15 days). If you work from Monday to Friday at a rate of eight hours a day, you must be paid 1,789.04 euros (88 hours x 20.33 euros).

In any case, the amount paid to your employee will be subject to income tax and social security contributions.

The agreement you propose is lawful. An adjusted alternative is to pay you the hourly wage multiplied by the actual hours you work.

Contact one of our experts so that he can advise you on your case.

The employee informs the company of his intention, after the end of his vacation, to get married and to begin to take the marriage leave.

When he returns to work, the company reproaches him for having taken the leave without his authorization and requires him to justify the marriage. He provides a foreign document that is not admitted by the company, and the worker starts a TI process due to anxiety. While he was on leave, it came to the company's attention that he was dancing and drinking alcoholic beverages from 2:00 to 4:00 a.m. in a discotheque.

The company considers that both facts, the lack of justification for an absence due to marriage that was not granted, and the partying until the wee hours of the morning, constitute a very serious offense for unjustified absence from work for more than 3 days, and a very serious offense for unjustified prolongation of the TI process with clear infringement of the principle of good faith and loyalty that must inspire the employment contract. Therefore, the company proceeded to the disciplinary dismissal of the employee.

The latter filed a lawsuit for dismissal, which was upheld by the labor court, which declared the dismissal unjustified, for which the company filed an appeal for reversal before the Supreme Court of Justice (TSJ).

The Supreme Court dismissed the company's appeal and confirmed the unfairness of the dismissal for the following reasons:

The TSJ recalls that the ET art. 37.3 establishes that the worker, with prior notice and justification, may be absent from work, with the right to remuneration, for certain reasons, including 15 days in the case of marriage. Therefore, it considers that there are 2 and not 3 requirements under the ET: a) prior notice and b) justification. Therefore, there is no requirement of company authorization.

Furthermore, in the case in question, since it has not been proven that exceptional circumstances exist, it is understood that there was sufficient advance notice to the company; and the employee presented a justification of the marriage celebrated and its inscription in the Spanish registry.

Do you have a marriage leave case in your company? Our consultants will be happy to help you.

The SCJ recalls that the case law of the SC establishes that, among other cases, there is a breach of contractual good faith for the performance of work during the TI, provided that the activity performed shows the patient's aptitude for work or is of such a nature that it prevents or delays recovery. Furthermore, there is no breach of contract for the performance of physical exercise or activities that are not detrimental to the course of the disease, or leisure activities, unless they are detrimental to the treatment or are incompatible with the TD situation.

The situation of sick leave due to TD is not a punishment of confinement, nor does it prevent the worker from leading a normal life or carrying out activities compatible with the medical treatment, if they do not harm or delay his recovery. In the case in question, the company has not even presented any indication that the worker's activity has an impact on the sick leave, so the allegation must be dismissed.