Background:
Article 29 of the Organic Law on the Right to Human Care (“LODCH”) already recognizes “special protection” against termination of employment during paternity leave, providing that: “Workers and public servants during pregnancy, childbirth and postpartum periods shall have special protection until the end of paid or unpaid maternity, paternity, adoption, and breastfeeding leave under any type of contract or appointment in the public sector, and contracts in the private sector.”
Constitutional Court Decision:
Through Judgment No. 1150-23-JP/26 dated April 16, 2026, the Constitutional Court of Ecuador developed binding jurisprudence regarding enhanced labor protection for working fathers during the exercise of paternity leave.
The Court determined that paternity leave “does not constitute an accessory benefit, but rather an instrument that enables the effective exercise of parental responsibilities and the right to care,” and that it “forms part of the care system and reflects the principle of shared parental responsibility.”
Regarding the extension of enhanced labor protection to fathers, the Court reasoned that although this guarantee was historically designed for pregnant and breastfeeding women, “one of the main purposes of this protection is to ensure the best interests of children, guaranteeing that they receive effective care from their parental figures during crucial stages of their development. This objective does not exclude […] the possibility that such protection may also extend to the exercise of fatherhood.”
Additionally, the Court stated that “shared responsibility becomes unfeasible if the exercise of caregiving exposes the father to job loss or income instability,” and that “extending this protection to fathers prevents caregiving from continuing to be a factor that penalizes only women.”
Scope of Protection
The Court clarified that this protection “operates automatically during its validity —currently fifteen days— and guarantees a minimum level of job stability during that period. This guarantee does not depend on discretionary assessments by the employer, but is activated solely by the legitimate exercise of the leave.”
Likewise, the Court established that the protection “is not satisfied by the mere formal continuity of the employment relationship, but requires the full preservation of its conditions,” including the prohibition of “changes in remuneration, loss of hierarchy, or modifications to duties,” and even the prohibition of merely “notifying during the leave” decisions that affect employment conditions.
Consequences of Termination During the Paternity Leave Period
The Court established the following general rule:
“72. When this protection is violated or the leave period is disrupted —whether through termination decisions, substantial deterioration of working conditions, or even notification thereof during its validity— such actions constitute violations of constitutional rights. In such cases, THE APPROPRIATE MEASURE TO REMEDY THE VIOLATION IS REINSTATEMENT TO THE POSITION UNDER THE CONDITIONS EXISTING PRIOR to the violation or, where materially impossible, to an equivalent position in hierarchy and remuneration. Economic compensation, on the other hand, is not the rule, but rather an exceptional measure applicable only when reinstatement is not feasible or is not suitable to fully remedy the violation, either because the employee does not wish it or because it is currently impossible to restore the relationship under equivalent conditions.”
Discrimination for Exercising Paternity Rights
The Court concluded that dismissal motivated by the use of paternity leave constitutes indirect discrimination, stating that “when the administration adopts dismissal decisions based on the use of leave or on the natural effects of such absences, this constitutes, among other things, a constitutionally prohibited distinction” that “simultaneously undermines the rights to work, care, and responsible fatherhood.”
Decision
The Court declared the violation of the rights “to equality and non-discrimination, to work in its dimension of enhanced labor protection due to paternity and to care, as well as the violation of the best interests of the claimant’s daughter.”
Observation Regarding Compensation
It is important to note that this judgment does not expressly establish compensation equivalent to twelve salaries. The rule established by the Court is that the primary remedy is REINSTATEMENT and, subsidiarily, economic compensation determined “in equity” according to the severity of the violation (paragraph 101).
Should you require additional information, please contact: laboral@bustamantefabara.com.
