Spain: The request for adaptation of working hours is compatible with the reduction of working hours
In this case, the plaintiff requested the recognition of her right to a working hour reduction, specifically she wanted a timetable as follows: Monday to Friday from 9.30am to 3.30pm and Saturdays from 9.30am to 2.30pm. She was providing her services in a fixed afternoon timetable, Tuesdays and Wednesdays from 3pm to 9.45pm and Monday, Thursday, Friday and Saturday from 2.45pm to 9.45pm.
The case law establishes, as a general rule, that the employee has the right to determine the reduction, which will be inside his/her working time, provided there is no bad faith. That is to say, the employee cannot alter the previous shift regime.
However, according to the new regulation introduced by the Royal Decree Law 6/2019 on urgent measures to guarantee equal opportunities for women and men in employment and occupation, establishes in Article 34 that the employee has the right to adapt the duration and distribution of the working time and the modality in which they work, in order to realise the right to reconcile work and family life. In case such adaptations are requested for the care of children, the right persists until the child is 12 years old. That Article refers to collective bargaining in order to determine the organisation of working time modifications, but in the event that collective bargaining says nothing, the employer and the worker must negotiate and, in any case, the employer must justify by objective reasons the refusal of the specifically requested working time.
The modification of Article 34 must be linked to Article 37.6 of Workers’ Statute, which establishes the worker’s right to adapt their working day to take care of children under 12. The Labour Court reinterpreted this Article and determined that it is not necessary that the reduction of working hours be limited to the daily timetable of the employee. For that reason, the Court finally recognised the right of the employee to a working hour reduction in the terms that she had requested.