The improvements introduced in recent years in rights of work-life balance consisting of reducing or adapting the working day have created interpretative doubts about their application and possible scope. Conflicts have arisen when, for example, the company considers that the case on which the person is relying is not accredited, or when there is no balance between the right of the person requesting the measure and the organizational needs of the company. In these cases, the courts and tribunals are giving a key role to the good faith that must exist between both parties.
We summarize below the main defining features of the work-life balance rights in question:
a) Reduction of working hours for legal guardianship (article 37.6 of the Workers’ Statute).
What does the reduction of the working day for legal guardianship consist of? It allows the reduction of the daily working day, with the proportional reduction of the salary between, at least, one eighth and, maximum, half of the duration of that day (except in the case of hospitalization and treatment of a dependent minor, in which case the reduction must be at least half of the daily working day).
What circumstances give rise to the right? a) Having a dependent child under 12 years of age or a person with disability who is not gainfully employed; b) being the direct caregiver of the spouse or domestic partner, or a relative up to the second degree of consanguinity and affinity, including the blood relative of the domestic partner, who, for reasons of age, accident or illness, is unable to fend for themselves, and who is not gainfully employed; c) be the parent, guardian for the purpose of adoption or permanent foster parent of a dependent minor affected by cancer (malignant tumors, melanomas and carcinomas) or any other serious illness, which implies a long term hospital stay and requires the need for direct, continuous and permanent care, accredited by the report of the public health service or administrative health body of the corresponding autonomous community.
For how long can the right be exercised? For as long as any of the cases listed in the previous point are maintained. Specifically, for the care of a minor under 12 years of age, until they reach that age, and, for case c) defined in the previous point, for the duration of the hospitalization and continued treatment. If these two events are prolonged beyond the child’s 18th birthday, the reduction of the working day can be extended until the child reaches 23 years of age (if the cancer or serious illness was diagnosed before the age of majority) or 26 years of age (if, before reaching 23 years of age, they also prove a degree of disability equal to or greater than 65%).
How can access to the reduction of working hours be granted? The employee must request the reduction to the company, in a reasoned manner and proving compliance with the legal requirements for access.
Are there limits to the exercise of the right? Defining the timetable corresponds to the employee within their ordinary working day, but collective bargaining agreements may establish criteria for it in accordance with the productive and organizational needs of the companies.
b) Adaptation of working hours (article 34.8 of the Workers’ Statute)
What does the adaptation of the working day consist of? It allows changes in the length and distribution of the working day, in the organization of working time and in the form of service (including the provision of remote work), to reconcile personal, family and work life.
What circumstances give rise to the right? a) Having a child under 12 years of age and b) having care needs with respect to children over 12 years of age, the spouse or domestic partner, relatives up to the second degree of consanguinity, as well as other dependents when, in the latter case, they live in the same household and are unable to care for themselves due to age, accident or illness.
For how long can the right be exercised? For as long as any of the cases listed in the previous point are maintained. Specifically, for the care of a minor under 12 years of age, until they reach that age.
How can access to the adaptation of the working day be granted? The employee who meets the requirements must apply for it to the company. The company, in the absence of specific regulation within the framework of collective bargaining, will open a negotiation period of a maximum of 15 days, and the request will be presumed to be granted if there is no expressly motivated opposition within this period. At the end of this period, the company may (i) accept the request; (ii) submit an alternative proposal; or (iii) deny the request, stating, in the last two cases, the objective reasons for the decision.
Are there limits to the exercise of the right? The adaptations must be reasonable and proportionate in relation to the needs of the person and the organizational or productive needs of the company. Collective bargaining agreements may establish the terms of its exercise, if they follow criteria and systems that guarantee the absence of discrimination, both direct and indirect, between persons of one or the other sex.
In the process of requesting and granting the above two rights, the good faith of the parties plays a fundamental role and may be key in determining the direction of a possible court decision in the event of a discrepancy.
This was recalled by the High Court of Justice of Catalonia, in its ruling of March 14, 2024, which emphasized the need, on the one hand, for the individual to justify the situation that they consider to be covered by, considering that the law guarantees a right to request, not an automatic right to adapt the working day; and, on the other hand, for the company to give reasons for its decision. Therefore, the lack of accreditation by the person of such situation may operate against them.
This good faith requires the justification of the reasonableness of the requested measure, for example, by providing evidence of the work schedule of the other parent or the custody regime in force in the case of divorced parents, and there must be a balance between the measure requested by the person and the organizational needs of the company. Based on this principle, for example, the Employment Court No. 4 of Vigo, in a judgment of March 30, 2023, understood that it was unreasonable to request a reduction of the working day with a specific timetable in the morning shift, when the applicant was a divorced father with a shared custody regime and the company had offered the conciliation measure for the weeks in which he was in charge of the minors.
In conclusion, judicial decisions are increasingly tending to try to strike a balance between personal and business needs, giving a key role to the principle of good faith in negotiations between the parties.
Sofía Espizua Gordobil
