Since its introduction in our legal system, the adaptation of working hours regulated in article 34.8 of the Workers’ Statute has been gaining ground as a measure to reconcile the work and family life of employees. However, the adaptations requested do not always meet the requirements of reasonableness and proportionality established in the law.
The adaptation of working hours is a mechanism which, without entailing a loss of pay as in the case of reductions in working hours under Article 37.6 of the Workers’ Statute (onwards WS), allows employees to apply for their employer the adaptation of the length and distribution of their working hours, the organisation of their working time and even the way in which they provide their services, in order to enforce their right to reconciling work and family life.
The variety of adaptation formulas that can be covered by Article 34.8 of the WS may be, from the outset, very broad. The assignment of a fixed working shift, the establishment of a particular shift takt time, the irregular distribution of the working day, the variation in working hours, the reduction of the working day beyond the provisions of Article 37.6 of the WS or teleworking are just some instances of working day adaptations, but there may be many more. The common element in all formulas is that, in order to be in accordance with the law, all of them must be reasonable and proportionate in relation to the needs of the employee and the organisational or productive needs of the company.
It happens in some cases that the requested adaptations do not comply with the requirement of reasonableness and proportionality established in the law, even though it is easy to understand that employees desire to set up their time and the way to provide their services in a more convenient way to their personal interests. Examples of this are the working day adaptations analysed in ruling no. 731/2022 handed down by the Social Division of the High Court of Justice of Madrid on 19 December 2022 and in ruling no. 521/2022 issued by Social Court no. 2 of Pamplona on 17 November 2022. Such judgments examine requests made by employees who justified the adaptation of their working day based on the need to look after their children and take them to extracurricular activities performed in the afternoons.
In the first of these cases, the employee, who already had a reduced working day with weekly morning and afternoon shifts, applied for the adaptation of his/her working day to a fixed timetable from 11.00 to 15.00 hours. In the second case, the employee requested that his/her working day be adapted by totally excluding the afternoon shifts, providing his/her services only in mornings and evenings shifts.
After analysing the specific needs argued and proven by each of the parties, the judicial bodies conclude in both resolutions that the measure requested is not reasonable and proportionate to the needs of the employee and the company, since even though the extracurricular activities are beneficial for the children (not responding in both cases to health needs or special needs), it cannot be ignored that they are voluntary, not compulsory, and, additionally, the parents freely make a choice on the extracurricular activities they enroll their children and how often they do so.
Without prejudice to the fact that each case requires a particular analysis of the circumstances involved, the two judgments mentioned above may be useful in assessing the scope of Article 34.8 of the WS in relation to the extracurricular activities that are sometimes the basis for requests to adapt the working day.
Quite a challenge
Finding the right fit for the change raised by each employee, according to their own needs in terms of work-life balance, in their daily activities and in the organisation of work in the company, can be a real challenge.
Therefore, counting with good legal advice in this area may be key to overcoming this challenge, either through collective or, failing that, individual agreements, or through the courts, which is the remedy provided by law in the event that the agreed route is exhausted without having found a satisfactory result for both parties.
Analysing, from a labor law perspective, the conciliation needs of the employee, the organisational or productive needs of the company and the reasonableness and proportionality of the requested adaptation in relation to these needs, also taking into account the interests of other possible affected employees, is essential in this process so that the company can make the right decision.