Edited by Luca Peron
Paternity leave represents a fundamental tool for promoting a culture of sharing in childcare and encouraging full gender equality in the distribution of parental roles, helping to eradicate, at least at the level of principle, the idea that it is always and only the woman who is absent from the workplace following maternity.
This is the context of the recent Legislative Decree No. 105 of 30 June 2022, implementing Directive (EU) 2019/1158 on work-life balance for parents, which also affects mandatory paternity leave.
Recall that such leave was first provided for, on an experimental basis for the two-year period 2013-2015, by Law 92/2012 (so-called Fornero Law) and originally had a duration of only one day. In subsequent years it was gradually extended, again on an experimental basis, by successive budget laws and, in parallel, its duration was progressively lengthened. It was only with the budget law of the year 2022 that compulsory paternity leave was stabilised.
Finally, with recent Legislative Decree No. 105 of 20 June 2022, compulsory paternity leave found a definitive place within the consolidated text on parenthood (Legislative Decree 151/2002), its natural sedes materiae, and its discipline was partially amended.
In detail, the above-mentioned Legislative Decree No. 105/2022 introduced into Legislative Decree No. 151/2022 (the so-called Consolidated Parenthood Act) Article 27bis, entitled ‘compulsory paternity leave’, which provides that ‘the father, from two months before the presumed date of birth and within five months thereafter, shall abstain from work for a period of ten working days, which cannot be divided into hours, to be used also on a non-continuous basis’.
In the light of the rules currently in force, compulsory paternity leave
- is granted for a period of 10 working days
- is doubled to 20 days in the case of twins/ multiple births;
- can be taken from 2 months before the expected date of birth until 5 months after the birth;
- is not divisible into hours, but can also be used on a non-continuous basis;
- is also available in the event of the perinatal death of the child, within the same time frame;
- also applies to adoptive or foster fathers;
- can also be taken during the working mother’s maternity leave;
- it is compatible with the use (not on the same days) of the alternative paternity leave provided for by Article 28 of Legislative Decree 151/2002, i.e. with the leave to which the father is entitled as an alternative to maternity leave in the event of the death or serious illness of the mother, abandonment or sole custody of the child by the father
- entitles the father to a daily allowance of 100% of salary;
In order to exercise this right, the father shall notify the employer in writing of the days on which he intends to take the leave, no less than five days in advance, without prejudice to any more favourable conditions established by collective bargaining. The written form may be replaced, where present, by the company information system for managing attendance.
The structural introduction of compulsory paternity leave in the body of Legislative Decree 151/2001 (Consolidated Parenthood Act) has important legal implications also in terms of the protections provided for in the event of dismissal and resignation of the working father.
The amended paragraph 7 of Article 54 of the aforementioned Legislative Decree. Legislative Decree no. 151/2001 provides, in fact, that in the event of taking the compulsory paternity leave referred to in Article 27bis (which, as it is compulsory, must be taken by all future working fathers), the prohibition of dismissal governed by the first four paragraphs of the same article, originally provided for only working mothers, applies.
Therefore, for the duration of the leave itself and until the child is one year old, the working father may not be dismissed, except in the case of: i) just cause; ii) cessation of the company’s activity; expiry of the fixed-term contract; iii) negative outcome of the test (Article 54, paragraph 3, Legislative Decree 151/2001).
During the same period (enjoyment of the leave and up to one year of age of the child), the working father cannot be suspended from work, unless the activity of the company or of the department to which he is attached is suspended, provided that the department itself has functional autonomy, nor can he be placed in mobility following collective redundancies pursuant to Law no. 223 of 23 July 1001, and subsequent amendments, except in the case of placement in mobility following the cessation of the company’s activity (art. 54(4) of Legislative Decree no. 151/2001).
We also remind you that, by virtue of the reference contained in paragraph 2 of Article 55 of Legislative Decree no. 151/2001, to the working father who has taken compulsory paternity leave (also in this case therefore, the consideration that, given the compulsory nature of the leave the persons concerned are all working fathers), the rule applies according to which, in the event of voluntary resignation presented during the period for which dismissal is prohibited (i.e. for the duration of the leave and up to one year of the child’s life), the working father is entitled to the indemnities provided for by law and contractual provisions for dismissal (notice and Naspi indemnities) and is not required to give the notice provided for by contract (art. 55, paragraph 1, Legislative Decree no. 151/2001).
For the sake of completeness, let us finally recall that the consensual termination of the employment relationship and the resignation submitted by the working father during the first three years of the child’s life must be validated, under penalty of ineffectiveness, by the inspection service of the Ministry of Labour (Article 55, paragraph 4, Legislative Decree no. 151/2001).
Finally, in terms of sanctions, in order to safeguard the effectiveness of compulsory paternity leave, Article 31 bis of Legislative Decree 151/2001 (introduced by the recent Legislative Decree 105/2022), establishes that refusal, opposition or obstruction to the exercise of the rights of absence under Article 27 bis (compulsory paternity leave) are punished with an administrative sanction (from €516 to €2,582) and prevent the employer from obtaining the certification of gender equality.
