Art. 39 D. Lgs. 151/2001 recognizes “to the working mothers, during the first year of life of the child, two periods of rest [n.d.r. reduced to one if the daily working time is less than six hours], also cumulative during the day”.
The duration of these rest periods shall be equal to one hour each and shall be halved if “the worker benefits from the crèche or other suitable facility established by the employer in or in the close vicinity of the production unit”.
The Plenary Council of State judgment, n. 17 published on 28 December 2022 in the field of public employment, whereas there is a conflict of case law and having regard to the constitutional principles on equality between father and mother in parental responsibility and the protection of the child, with reference to the first two of the three questions submitted to it, set out the following principle of law:
“Article 40, paragraph 1, lett. c), of Legislative Decree no. 151 of 26 March 2001, which provides that the rest periods referred to in Article 39 above shall be granted to the father who is an employee of the child under the age of one, if the mother is not an employee>, intends to refer to any category of not employed women workers (even if housewife – ndr), and therefore also to a woman who works in the family, without it is necessary, for this purpose, that she be engaged in activities that divert her from the care of the newborn, or is suffering from infirmity”.
Marco Gianluigi Alberio