Spain: The statutory entitlement to adjust the working day conferred on employees by the Workers’ Statute does not constitute an unconditional right for the employee

This judgment addresses the request of a female employee to modify her working hours because she has a child under her care. This possibility to conciliate work and family life is included in the Workers’ Statute, specifically in article 34.8, which sets as a limit that this type of request must be reasonable and proportionate in relation to the needs of the employee and the organizational or productive needs of the company.

In this particular case, the employee was hired to work full time from Monday to Sunday, while taking the legally mandatory time off. Initially, as a result of the birth of her daughter, she requested and was granted a reduction in the working day and a specific schedule, working from Monday to Sunday in morning shifts (from 9:00 am to 3:00 pm) and afternoon shifts (from 2:30 pm to 8:30 pm). In 2019, she requested a new schedule, based on her daughter’s schooling, consisting in working Monday to Saturday, from 9:00 am to 3:00 pm, which, despite the company’s refusal, was granted by a court of law.

It is worth bearing in mind that the other parent of the child works in the same company and did so prior to the hiring of the plaintiff employee, with a working week from Monday to Sunday, with the statutory breaks.

In 2021, the employee requested a new schedule, seeking not to provide services on the public holidays that would fall on her work schedule, in order to avoid overlapping with the other parent so that she could take care of her child. However, it should be noted that during the year 2020 both parents only overlapped in the provision of services on public holidays twice, and not at all in the year 2021.

The judgment of the Superior Court of Justice believes in this respect that the employee has not proven that there is a different motivation from the one that was already examined in the previous schedule adjustment request, being the current family circumstances identical to the former ones. On the other hand, the Court considers that the company has demonstrated, from an organizational and productive point of view, that the employee’s request would affect the rest and vacation rights of the other employees, as well as affect the organization of the company, since the days that the employee requests not to work, are the days when the greatest number of customers visit the store, which essentially means a higher turnover.

Thus, the reasoning of this Court is rather pioneering in Spain, since normally the courts tend to take into consideration the superiority of the employee’s rights over the interests of the employer in this type of situations where the care of a child is involved.

Key action point

Certainly, this is a very surprising and interesting ruling concerning a matter in which there is scarce case law, giving more strength to the companies when rejecting the requested working schedule adjustments, as long as they can provide proof of the inability on their part to accept them.