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30 October 2019
As of 8 March 2019, employees can request adjustments to the duration and distribution of their working day or how they organise their time at work – including remote working – as a means of ensuring work-life balance.
The entry into force in March 2019 of Royal Decree-Law 6/2019 on Urgent Measures to Guarantee Equal Treatment and Opportunities for Men and Women in Employment and Occupation(1) and Royal Decree-Law 8/2019 on Urgent Social Protection Measures and the Fight Against Job Insecurity(2) has had a profound effect on companies, most notably with regard to the mandatory recording of working hours.
There has been a wave of criticism that the recording of employees' working hours has hindered the flexibility measures which companies were beginning to introduce. As such, it is somewhat surprising that the recent amendment to Article 34.8 of the Workers' Statute appears to have flown under the radar, especially given that it aims to boost flexibility in order to uphold employees' rights to a work-life balance.
The new wording of Article 34.8 of the Workers' Statute gives employees the autonomous right to request changes to:
Previously, the right to adjust an employee's working day depended on the applicable collective bargaining agreement or the individual agreement reached with their employer (which had to respect the provisions of collective bargaining). In the absence of such agreements (whether collective or individual), the Supreme Court always held that the adjustment of working schedules could not be petitioned as such right did not apply directly in such instances.
The key development introduced by the amended statute is the recognition of employees' entitlement to request an adjustment. Thus, the role of collective bargaining has been reduced to merely outlining the terms of how such right can be exercised.
Where a collective bargaining agreement does not set out the terms for exercising this right, the amended statute compels companies to begin a maximum 30-day negotiation period with the employee. In addition, if the employee's request cannot be accepted, the company must provide written grounds on which its decision is based.
Once a request has been made, the parties are free to discuss options. In the event of a disagreement, a labour court may rule on the matter, taking into account the company's organisational and production issues which led it to reject the employee's request and the reasonable nature and proportionality of the employee's needs.
The statute clarifies that any disputes between employees and employers will be resolved through the procedure detailed in Article 139 of the Labour Act. This procedure does not allow appeals to be lodged (unless the employee claims an infringement of fundamental rights or compensation for damages that exceed €3,000), which hinders the creation of case law that could bring together basic criteria for action.
As the labour courts begin to hear cases involving these requests, some have granted employees the right to choose a fixed shift pattern. However, the main judgments issued to date are those of the courts of justice, which – although not directly related to schedule adjustment requests under Article 34.8 of the Workers' Statute – have afforded employees the right to choose set shifts on the back of an amended statute regarding the right to adjust working hours following requests for reduced hours due to childcare (Canary Islands High Court of Justice, 12 March 2019 and Andalusia High Court of Justice, 11 April 2019). Some labour courts have decided cases regarding schedule adjustment requests under Article 34.8 of the Workers' Statute where no request for reduced hours due to childcare was made, analysing in detail and balancing the concrete needs of the employees and the organisational grounds of the companies. In those cases, the timetable of the other parent was taken into account, but not the availability of other family members such as grandparents or third persons.
Under this amended article of the Workers' Statute, it is of utmost importance to review the terms under which an employee can exercise their new right that could be included in the applicable collective bargaining agreement or, failing that, implement efficient internal processes for negotiating alternative options with employees and resolving disputes. Where an agreement cannot be reached, the organisational and production-based grounds underpinning the rejection of the request must be provided in detail.
That said, further rulings are required to gain a clear idea of how to tip the scales between the reasonable nature and proportionality of the requesting employee's needs and the organisational and production-based difficulties faced by their employer.
For further information on this topic please contact César Navarro, María José Ramos or Carmen Bardi at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.
(1) For further details please see "New regulations aim to improve gender equality".
(2) For further details please see "Daily recording of working hours: FAQs".
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