Co-responsibility is the equal sharing of household chores and family responsibilities between men and women. The latest legislative reforms on equality in the workplace (and the interpretation of judicial bodies) are inspired by this concept, seeking to ensure that men and women enjoy equally measures related to family care. The aim: ensuring that women’s professional careers are not more affected than men’s by absences due to such care.
There are many regulations that have been enacted in recent years to achieve effective equality between men and women in the workplace: from the pioneering Organic Law 3/2007, of 22 March, for the effective equality of women and men, and the Royal Decree-Law 6/2019, of 1 March, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation at work, to the most recent Royal Decree-Law 5/2023 of 28 June 2023, which, among other issues, approved the transposition of Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers.
In the last few years, the various legal provisions have introduced multiple labor measures to ease the reconciliation of work and family life for men and women to take care of their families. Some legal provisions clearly seek to ensure that men and women take care of their family equally. The aim is to eliminate any disadvantage or reduction in terms of improvement and progress, which may affect the professional careers of people who informally take care of their family members or dependents.
Highlights of such measures are the equalization of the duration of the suspension of the employment contract due to the birth of a child that was approved in 2019, aligning the suspension of the contract due to birth for both parents to 16 weeks, or the benefit for the exercise of joint responsibility for the care of the breast-feeding infant, which allows one of the parents to receive a social security benefit when both working parents enjoy, with the same duration and regime, the right to a reduction of the working day by half an hour for the care of the breast-feeding infant from the ages of nine to twelve months.
In general, however, conciliation measures are still mostly requested by women.
In this context, there are many rulings of our courts and tribunals of the labor jurisdiction, which consider the existence of co-responsibility, or the need for it to exist, when analyzing the right to the specific conciliation measures requested.
For this reason, increasingly, before requests for conciliation such as the adaptation or reduction of the working day for legal guardianship, women must prove their personal needs for conciliation in light of the incompatibility of her working time and that of the father with the care needs of the minors under their care.
Thus, issues relating to the private sphere of the family residence, such as whether the woman lives with the father of the child for whose care the specific conciliation measure is requested, the father’s working time, or the division between the mother and father of tasks and responsibilities for the care of the child, are assessed by the labor courts and tribunals. There have been cases where the labor court has found that there is no co-responsibility between the mother and the father and therefore has not granted the mother the conciliation measure requested.
Thus, for instance, the judgment of the High Court of Justice of the Canary Islands, of 29 June 2023, confirms the validity of the employer’s rejection of a request for adaptation of working hours submitted by a female employee whose partner also provided services in the same company, for, among other reasons, she renounced to a working day called “swapping shifts” that made it possible for her not to coincide with the father of the child. The court considered that this offer respected the principle of co-responsibility, since she could not coincide with the father and allowed the father to participate effectively in family life and a balanced distribution of the child’s care responsibilities between both parents.
Likewise, the judgment of the High Court of Justice of Madrid, of December 19, 2022, upheld the company’s rejection of another request for adaptation of hours, for not having provided data regarding the father of the children, having proven in court that the working time of the father was not incompatible with the attention and care of said children, in line with the principle of parental co-responsibility.
In short, both the legislation and its interpretation by the courts and tribunals are committed to co-responsibility. When we get closer to the real co-responsibility of the family in society, we will be able to know whether it does in fact facilitate equal opportunities between men and women at work.
María Luisa Pérez López
Garrigues Labor and Employment Law Department
