Father is entitled to paid time off to care for his child

In Alvarez v Sesa Start Espana ETT SA (C-104/09), Spanish law permitted a female employee to take paid time off from work to care for her baby until it was nine months’ old. She could take such time off by reducing her working day by 30 minutes or taking paid time off for one hour per working day.

If the baby’s father was an employee – he could take paid time off from work to care for the child – only if the baby’s mother had not taken such time off.

Mr Alvarez, an employee, made a request to take paid time off to care for his child. His request was refused because his wife was self-employed and not an employee. Mr Alvarez argued that the refusal amounted to unlawful sex discrimination under the Equal Treatment Directive. Mr Alvarez claimed that he should have the same independent right as a female employee to take paid time off to care for his child.

The Advocate General agreed and ruled that the ECJ should uphold his claim.

Since the Spanish law was primarily concerned with the care of a baby which could be provided by the baby’s mother or father - Mr Alvarez was not claiming that he was entitled to the same protective rights (e.g. maternity leave and pay) afforded to women in relation to pregnancy or maternity under EU law.

The decision of the ECJ is awaited. The ECJ usually agrees with the ruling of the Advocate General.

Update [30 September 2010]

On 30 September 2010, the ECJ agreed with the ruling of the Advocate General: Alvarez v Sesa Start Espana ETT SA (C-104/09) and the ECJ's press release.