Should employers compensate employees for not taking paternity leave?
2024 08/28
The population and family planning regulations in various regions stipulate that couples who give birth in accordance with laws and regulations are entitled to maternity leave, with the female party enjoying maternity leave and the male party enjoying a certain number of days of paternity leave or nursing leave (collectively referred to as "paternity leave" in this article, except for cases cited). During the period when the male party enjoys paternity leave, the employer should pay his salary accordingly. In real life, if a male employee does not take or does not take sufficient paternity leave when his wife gives birth, should the employer compensate him by converting his salary? At present, there are no clear provisions in laws and regulations, and there are also different opinions in judicial rulings.
Viewpoint 1: There is no clear provision in laws and regulations that requires compensation for not taking paternity leave, and there is no legal basis for employees to demand compensation from employers.
In the case of Lu 0104 Min Chu No. 430 (2022), the court held that according to local regulations, if a woman gives birth late, male employees are entitled to 7 days of nursing leave, which is considered attendance, salary is paid as usual, and welfare benefits remain unchanged. However, relevant laws and regulations do not stipulate that if the employer does not arrange nursing leave, male employees should be paid nursing leave wages separately. Therefore, the employee's lawsuit request regarding nursing leave wages has no legal basis and the court will not support it.
In the case of (2021) Jing 01 Min Zhong 4324, the court held that although there is a local regulation that "for those who give birth to children in accordance with laws and regulations, their spouses shall be given one month of care leave, and the care leave period shall be deemed as attendance", it cannot be inferred from this regulation that "if the employee does not take care leave for their spouse, the employer shall pay the salary for the unused care leave". Therefore, the employee's request for the company to pay one month of unpaid paternity leave salary is unfounded and not supported by law.
Viewpoint 2: If an employee does not voluntarily request paternity leave, it is considered a waiver of that right and they have no right to demand compensation; Employees who are unable to take nursing leave due to reasons attributable to the employer shall be compensated.
In case (2023) E 01 Min Zhong 10477, the court held that regarding the wage difference for unpaid paternity leave, the employee did not provide evidence to prove that they had informed the employer of the birth of their child and requested paternity leave, which was considered as a waiver of their corresponding rights. Therefore, the court did not support this claim.
In case No. (2021) Xiang 01 Min Zhong 12018, the court held that according to relevant policies, employees are entitled to 20 days of paternity leave, but they actually took 6 days of paternity leave. As for the unused paternity leave, the employee did not submit evidence to prove that the unused days were caused by the company's reasons. Therefore, the employee's request for the company to pay wages for the unused days of paternity leave is unfounded and unsupported by facts and laws.
Viewpoint 3: If there is an unused paternity leave at the time of resignation, and the employee requests to have the paternity leave pay converted, the employer should compensate for the unused paternity leave if it is not due to the employee's reasons.
In case No. (2019) Yue 0111 Min Chu 19954, the court held that according to local regulations, employees are entitled to 15 days of paternity leave, during which they will receive their wages without affecting their welfare benefits and full attendance awards; However, if the employer and employee reach a consensus to terminate the labor contract, resulting in the employee being unable to enjoy the remaining 10 days of unused paternity leave, the company should pay the employee the salary for the unused paternity leave.
In the case of (2021) Chuan 01 Min Zhong 15952, the court held that according to regulations, an employee is entitled to 20 days of nursing leave during his wife's childbirth period, but the employee has 15 days of nursing leave that he has not taken, and the reason for the employee not taking nursing leave is not due to personal reasons. The employer should pay the employee the remaining 15 days of paternity leave wages according to the normal wage standard.
Based on the above cases, in judicial practice, the issue of whether the employer should compensate the employee for not taking paternity leave due to reasons is usually judged comprehensively, taking into account local regulations on paternity leave, whether the employee has submitted an application for paternity leave to the employer, the actual situation of the employee taking paternity leave, and the reasons for the employee not taking paternity leave. Due to the lack of clear legal and regulatory basis, the judgment results vary. In order to prevent similar disputes, employers can clarify the rules for handling paternity leave requests, leave, and missed leave in their rules and regulations. If it is indeed due to the employer's reasons that the employee's paternity leave application has not been approved, in accordance with the principle of "people-oriented", flexible leave, flexible work methods, compensatory leave, etc. can also be used to correspond.
Viewpoint 1: There is no clear provision in laws and regulations that requires compensation for not taking paternity leave, and there is no legal basis for employees to demand compensation from employers.
In the case of Lu 0104 Min Chu No. 430 (2022), the court held that according to local regulations, if a woman gives birth late, male employees are entitled to 7 days of nursing leave, which is considered attendance, salary is paid as usual, and welfare benefits remain unchanged. However, relevant laws and regulations do not stipulate that if the employer does not arrange nursing leave, male employees should be paid nursing leave wages separately. Therefore, the employee's lawsuit request regarding nursing leave wages has no legal basis and the court will not support it.
In the case of (2021) Jing 01 Min Zhong 4324, the court held that although there is a local regulation that "for those who give birth to children in accordance with laws and regulations, their spouses shall be given one month of care leave, and the care leave period shall be deemed as attendance", it cannot be inferred from this regulation that "if the employee does not take care leave for their spouse, the employer shall pay the salary for the unused care leave". Therefore, the employee's request for the company to pay one month of unpaid paternity leave salary is unfounded and not supported by law.
Viewpoint 2: If an employee does not voluntarily request paternity leave, it is considered a waiver of that right and they have no right to demand compensation; Employees who are unable to take nursing leave due to reasons attributable to the employer shall be compensated.
In case (2023) E 01 Min Zhong 10477, the court held that regarding the wage difference for unpaid paternity leave, the employee did not provide evidence to prove that they had informed the employer of the birth of their child and requested paternity leave, which was considered as a waiver of their corresponding rights. Therefore, the court did not support this claim.
In case No. (2021) Xiang 01 Min Zhong 12018, the court held that according to relevant policies, employees are entitled to 20 days of paternity leave, but they actually took 6 days of paternity leave. As for the unused paternity leave, the employee did not submit evidence to prove that the unused days were caused by the company's reasons. Therefore, the employee's request for the company to pay wages for the unused days of paternity leave is unfounded and unsupported by facts and laws.
Viewpoint 3: If there is an unused paternity leave at the time of resignation, and the employee requests to have the paternity leave pay converted, the employer should compensate for the unused paternity leave if it is not due to the employee's reasons.
In case No. (2019) Yue 0111 Min Chu 19954, the court held that according to local regulations, employees are entitled to 15 days of paternity leave, during which they will receive their wages without affecting their welfare benefits and full attendance awards; However, if the employer and employee reach a consensus to terminate the labor contract, resulting in the employee being unable to enjoy the remaining 10 days of unused paternity leave, the company should pay the employee the salary for the unused paternity leave.
In the case of (2021) Chuan 01 Min Zhong 15952, the court held that according to regulations, an employee is entitled to 20 days of nursing leave during his wife's childbirth period, but the employee has 15 days of nursing leave that he has not taken, and the reason for the employee not taking nursing leave is not due to personal reasons. The employer should pay the employee the remaining 15 days of paternity leave wages according to the normal wage standard.
Based on the above cases, in judicial practice, the issue of whether the employer should compensate the employee for not taking paternity leave due to reasons is usually judged comprehensively, taking into account local regulations on paternity leave, whether the employee has submitted an application for paternity leave to the employer, the actual situation of the employee taking paternity leave, and the reasons for the employee not taking paternity leave. Due to the lack of clear legal and regulatory basis, the judgment results vary. In order to prevent similar disputes, employers can clarify the rules for handling paternity leave requests, leave, and missed leave in their rules and regulations. If it is indeed due to the employer's reasons that the employee's paternity leave application has not been approved, in accordance with the principle of "people-oriented", flexible leave, flexible work methods, compensatory leave, etc. can also be used to correspond.
