Right to A la Carte working day: in action

Issues of first judgments on adapting working day cause a stir in companies

In March, after the publication of Royal Decree-Law 6/2019, of March 1, on urgent measures guaranteeing equal treatment of men and women and equal opportunities in employment and occupation (“RDL 6/2019”), we published a post on this blog, analyzing the important amendment of article 34.8 Workers Statute, forecasting a considerable impact that has already arrived.

Even the general press is discussing the court decisions on this matter (the latest, the judgment by Labor Court No.1 of Mataró, of September 12), showing not only that this is a current topic, but that it is also of interest for both employees and companies.

Apart from mentions in the media and in social networks, this judgment (and other judgments issued after the entry into force of RDL 6/2019) helps us understand the scope and content that the judges grant to this right and, above all, to find out on what basis they accept or reject the requests made under article 34.8 Workers Statute.

The judgments mentioned start their arguments referring to constitutional doctrine (including Constitutional Court judgments 3/2007, of January 15 and 26/2011, of March 14,), which establishes that the concurring circumstances must be considered to assess whether a company’s rejection involves an unjustified obstacle to the effectiveness of any right to work-life balance at stake, including rights that require collective arrangements or an agreement between the parties, such as the case of the right established in article 34.8 Workers Statute.

That said, all the mentioned judgments have a clear message: the reasons and evidence provided in court are key for deciding whether the employees (in all the cases analyzed, female workers requested the measure) have sufficiently proven the reasons for which they want to adapt their working day (or a reduction of the working day with that adaptation, in the case of a joint request under articles 37.6 and 34.8 Workers Statute), or whether the company clearly proved that the request for adaptation is too detrimental for the company’s organization.

It is particularly important to consider the (i) female worker’s family circumstances, the schooling of the children and the exercising of co-responsibility by the other parent; and (ii) the size of the company, the workforce and the work center’s working hours, the workloads and number of visitors, as well as the multiple functions of the other employees.

Based on the above, for example, in one of the cases, the claim was partially upheld, on the understanding that on Saturdays the other parent could look after the minors, but not on any other day (judgment by Labor Court No. 1 of  Cáceres, of July 15); however, it was rejected given the proof that the change of working day to the requested fixed shift would be detrimental to the company and to other employees, and that the adaptation would also not meet the minor’s needs (judgment by Labor Court No. 1 of Gijón, of August 29).

Another matter the judges considered in each case is the existence of negotiations meeting the requirements in the new wording of article 34.8 Workers Statute, with alternative proposals.

Based on this, there are many issues to be discussed:

• When would a sentence for damages apply in these cases and what would the maximum amount be? In the judgment by Labor Court No. 1 of Mataró these are adjusted, finally establishing an amount of €3,125.

• How are two rights (reduction of working hours versus adjustment of working hours) combined with different legal regimes? In judgment by Labor Court No. 26 of Madrid, of May 15, a claim initially filed in relation to reduction of working hours (article 37.6 Workers Statute) was reinterpreted by the judge under the protection of the new wording of article 34.8 Workers Statute.

• In which cases is it possible to appeal against a first-instance judgment? In judgment by Labor Court No. 2 of Zamora, of July 26, the judge confirms the application of ordinary proceedings when the claim is exclusively based on article 34.8 Workers Statute with the subsequent possibility to file an appeal for reversal.

These and other interpretative issues provide enough material for upcoming judgments and, we hope, greater legal certainty for the parties.

Autora: Cristina Rodríguez