The right to adapt the working day arises from the new wording of article 34.8 of the Workers’ Statute (hereafter ET) introduced by Royal Decree-Law 6/2019, of 1st March. Since its entry into force, this right has given rise to numerous doubts within companies.
While it is true that at first the judgments supported workers in their request for adjustment of the working day, over time, other judgments have given valid business refusals to this type of request. In particular when the company based its reasons on organizational grounds.
Regardless of the final decision, an analysis of the pronouncements makes it possible to detect common aspects regarding the exercise of the right to adapt the working day. Specifically, the following factors are common:
The constitutional aspect of the law
The constitutional dimension of all the measures contemplated in Spanish labour legislation aimed at facilitating the compatibility of the working and family life of workers must prevail and serve as a solution to any interpretative doubt. Both from the perspective of the right to non-discrimination of working women (art. 14 of the Spanish Constitution -CE-), and from that of the mandate of social and legal protection of the family (art. 39 EC). So states the Judgment of 28th May 2019 of the Labour Court of Justice of Galicia.
Personal character of the right
The legal regulation of the right to adapt working hours gives workers the power to exercise it without the need to prove anything about the conditions of conciliation in their personal environment. Workers do not have to prove, for example, the availability of their spouses, grandparents or third parties outside the family nucleus to collaborate with them in making their professional life compatible with family life.
Sufficient burden of proof on the part of the company
All judgments reviewed examine to what extent the obligation of substantiation is met.
Article 34.8 ET establishes that, if the negotiation period terminates without an agreement, the company must indicate the objective reasons of organizational nature on which it bases its refusal.
The judges’ assessment is normally oriented towards determining whether companies are alleging mere generic causes, or whether there are powerful reasons that prevent workers from adapting to the requested working hours.
Harmony between the purpose of the request and the attempted adaptation
A decisive factor in the validity of the request made by the workers is that the intended modification adequately satisfies the purpose for which it is required.
Let us take as illustrative example the case prosecuted in the Judgment of the Labour Court of Gijón dated 29th August 2019. The worker requested to work from 09:15h to 16:15h to take care of her son, who started the school year in September with school hours from 09:00h to 13:00h in the morning and from 15:15h to 17:00h in the afternoon. In this particular case, there was a time slot from 13:00h to 15:15h, during which the mother could not take care of her child with the requested adaptation of the working day. This, according to the judge, did not guarantee the correlation between the worker’s hourly demand, and the reality for which it was required, thus distorting the purpose of the request and legitimating the company’s refusal.
Once all these factors analysed and taking into account that the validity of the company’s refusal to adapt the working day requests begins to pivot, it is advisable that the company adopts a series of formalisms and cautions in the course of the 30 days’ negotiation process required by art. 34.8 ET.
For further information regarding the adaptation of the working day in Spain,
