It is not always easy to draw a line between what is part of life and what is. special anyone professional of a person. And ultimately, to what extent can a judge or boss have a say? Can a company punish a worker who criticizes it? social networks special? Is it legal for a while? private eye Do you monitor an employee on sick leave to verify that he or she is complying with medical prescriptions to return to work? Instead of asking for a shift change, can a supervisor ask a subordinate if he can’t leave the child with the grandparents?
There is currently a fierce debate going on in the courts regarding this last question, particularly at the instigation of the Supreme Court. royal decree 5/2023published at the end of last June and aimed to promote joint responsibility And compromise within companies. This rule gives employees who have dependent children the right to ask their company to make them an offer. fixed and special program. This is what is legally known as time concretion. For example, a worker who works the morning shift one week and the afternoon shift the next week may claim that he always works the morning shift so that he can pick up his child from school.
Until now, this right was reserved only for workers who were entitled to these rights. reduction in working hours and the embodiment of time was not always guaranteed. However, since this last legislative change, companies have an obligation to respond to the worker within a certain period of time. 30 dayswith either ‘yes’ or ‘no’. And if ‘no’, properly justify why.
And it is on this last point and the current set of arguments that the courts get confused. When and for what reasons is it legal for a company to refuse? adapt the day A worker taking care of his children? Should the employee disclose whether the spouse can care for the child while the employee works or whether the grandparents are available?
Private life yes or no?
“This is a sensitive issue because it affects everyone’s personal space. “If the worker needs a compromise and his request can easily fit into the work organization, I think justice should not enter into the assessment of the other parent’s situation,” he explains. Mireia SanraMember of the ICAB young lawyers group and lawyer at the law firm Vallbé.
With this positioning, higher courts, e.g. Galicia or his Madridfor example the one who failed at this just a week ago. Although, as labor lawyer Pere Vidal recalls, Madrid judges do not have a unanimous position, and there are assemblies that decide otherwise. That is, some of the courts consider that the worker must make a statement about his private life in order to justify a shift change or a certain schedule.
Vidal defines this as a right.”balanced“, while the company must surrender and adapt, it can also demand that the worker implement a practice of transparency and explain what his personal situation is. That is, information such as what hours his partner works or what hours the nursery or school operates, among others. Labor law from the University of Valencia “It’s not a serious negotiation if one party doesn’t provide all the information,” his professor agrees. Adrian Todoli.
joint responsibility
supreme courts of justice Canary Islands anyone Castile la Mancha They support this second interpretation of the regulations and think that the worker should comply with this practice of transparency. First of all, because the norm requires joint responsibility. In other words, it should contribute to the fairness of care sharing between men and women and prevent them from becoming people who demand constantly changing schedules to combine their work life with their family life.
For example, La Mancha judges refused to adjust part of his time as a restaurant cook because allowing him to finish his day at three instead of four caused the company to close the kitchen earlier and lose some of its customers. Or hiring another person for just an hour or hour and a half of work. And the couple rejected the schedule, citing the fact that they were available to pick up the child from school.
“In case the company has difficulty accepting the change, I understand availability The other parent must meet the needs that support the request for accommodation. In other words, solving a need that can be met with the right shared responsibility does not represent an impossible puzzle for the company. [del otro progenitor]”, points out Sanromà.
“If it were a man requesting a time specification, which is much more rare now, courts would have fewer arguments to deny it. Because it fits the desire for shared responsibility,” Vidal says.
I’m waiting for the Almighty
Col·lectiu Ronda’s lawyer Nacho Parra It closes ranks with the least intrusive comment for the employee. “Asking whether grandparents or a partner are available is a very narrow interpretation of the balance between family and work life. Because it denies the child the opportunity to enjoy both parents at the same time,” he says.
Todolí (UV) differs at this point. “We run the risk of feeding a moralistic narrative that a single parent cannot take good care of the child. We do not think that both parents should enjoy the child’s leave at the same time.” says.
The division between the courts, the currentness of the rule and the still lack of regulation through collective bargaining means that many workers with children resort to the courts. With an uncertain result, the result may be different as it depends on where it falls and each referee’s criteria. According to all legal experts consulted for this report, the Supreme Court’s final decision will be made within a year at the earliest. And it is not clear that he imposes a unified doctrine, leaving each case to the discretion of the assigned judge.