Article 34.8 of the Statute of Workers (ET) established, until last March 8: “the worker shall have the right to adapt the duration and distribution of the workday to realize his right to the reconciliation of personal, family life and labor in the terms established in the collective bargaining or in the agreement that arrives with the employer respecting, where appropriate, the provisions of that “. A conditional right to collective bargaining (Convenio) or agreement with the employer.
From the entry into force of a new Royal Decree Law, in force as of March 7th 2019, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation, the text of this section states:
“Working persons have the right to request adaptations of the duration and distribution of the workday, in the organization of working time and in the form of provision, including the provision of their distance work, to realize their right to the reconciliation of family and work life. These adaptations must be reasonable and proportionate in relation to the needs of the worker and the organizational or productive needs of the company.
In the event that they have sons or daughters, working people have the right to make such a request until the sons or daughters turn twelve.
In collective bargaining (Convenio), the terms of their exercise will be agreed, which will be adapted to criteria and systems that guarantee the absence of discrimination, both direct and indirect, between working people of both sexes. In his absence, the company, upon request of adaptation of the day, will open a negotiation process with the worker for a maximum period of thirty days. Once it has been completed, the company, in writing, will communicate the acceptance of the petition, will propose an alternative proposal that allows the reconciliation needs of the worker or will manifest the refusal to exercise. In the latter case, the objective reasons on which the decision is based will be indicated.
The worker will have the right to request the return to their previous working day or contractual modality once the agreed period has ended or when the change of circumstances justifies it, even if the planned period has not elapsed.
The provisions of the preceding paragraphs are understood, in any case, without prejudice to the permits to which the worker is entitled in accordance with the provisions of article 37
Discrepancies between the management of the company and the worker will be resolved by the social jurisdiction. “(Article 34.8 ET)
Timetable and teleworking
As can be seen from the cross-reading of both versions, the current one collects or enumerates (not taxatively) possible options for the worker to reconcile. In this sense, the reduction in working hours (regulated in article 37), the so-called ‘a la carte workday’ or time adaptation (“the organization of working time”), and also the way in which work is clearly provided allusion to teleworking (“provision of your work at a distance”). In addition, it is expressly included, as one of the protected cases, that of parents with children under twelve years.
Another point that reinforces the exercise of this right is that it includes the duty of companies to allow the worker to return to their usual day before, even, the agreed period because they no longer need it (when “the change of circumstances so justify “).
Regarding the viability of the requests for adaptation, the law indicates, always under the umbrella of proportionality (“such adaptations must be reasonable and proportionate”), the obligation of the company must facilitate a channel to process these requests. If nothing is established in the Convenio in place for the line of work (the law promotes that this is the regulatory framework that sets the rules of the game in terms of gender equality), the worker must negotiate with his employer.
In the absence of other rules contained in the agreement, the company, upon request of adaptation of the workday, “will open a negotiation process with the worker for a maximum period of thirty days.”
That is, once the worker’s request has been completed, the company has 30 days to answer it, either accepting it, or proposing an alternative proposal, or rejecting it. In the latter case, the law requires the employer to indicate “the objective reasons” on which it supports its refusal.
In order to resolve the conflict between the employee and the company management, the ad hoc procedure provided for in article 139 of Law 36/2011, of October 10, regulating the social jurisdiction, is a procedure that has an “urgent and preferential nature” “.
The worker has 20 days to file a complaint with the Social Court. A claim in which you can accumulate the action for damages due to the refusal of the employer or the delay in the exercise of his right.
The norm establishes that “the employer and the worker must take their respective proposals and alternatives of concretion to the acts of conciliation prior to the trial and to the act of judgment, which may accompany, where appropriate, a report of the joint bodies or monitoring of the company’s equality plans for consideration in the sentence. ”
The hearing must be indicated five days after the admission of the claim and the sentence will be issued in three days.
A recent case, in which this route was used, is the judgment of the Court of Justice of the Canary Islands, in which the company was sentenced to indemnify the worker with three thousand euros for moral damages for refusing to let the employee do in morning shift his reduced day.
With thanks to ‘Noticias Juridicas’ for this information.
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