Article 86 of the Spanish Constitution allows the Government to issue royal decree-laws "in cases of extraordinary and urgent necessity". We leave it to your good judgement, dear reader, to decide whether there is an "extraordinary and urgent necessity" to amend the Workers' Statute, though what is clear is that we are becoming accustomed to seeing governments reach for this type of legislation whenever a general election draws near.
On 30 June, Royal Decree 5/2023 came into force, introducing several amendments to the Workers' Statute as well as to the Act Regulating Social Jurisdiction:
Written by Albert Perez
Employment Law Adviser
Discrimination on grounds of work-life balance: now expressly prohibited
Article 4.2 of the Workers' Statute now includes the following addition:
"c) Not to be discriminated against directly or indirectly (…) including unfavourable treatment of women or men for exercising their rights to work-life balance or shared family responsibility"
The first question we ask ourselves as lawyers is how the concept of "unfavourable treatment" will be assessed, and whether such "unfavourable treatment" will result in the measure taken, or, for example, the dismissal, being declared null and void on those grounds.
The right to adjust working hours for work-life balance is extended.
Article 34.8 of the Workers' Statute is extended to cover situations where the employee lives in the same household as:
- children over the age of 12.
- a spouse or domestic partner.
- relatives by blood up to the second degree of kinship of the employee.
- dependent persons living in the same household.
who, due to age, accident or illness, are unable to care for themselves independently, with the employee required to substantiate the circumstances on which their request is based.
We question what the term "unable to care for themselves independently" will mean in practice and how case law will define its boundaries, as the wording appears open to interpretation. It does not seem to refer solely to the physical condition of the minor, spouse, domestic partner, relative or dependent person in question, but may also be interpreted as encompassing the personal and professional circumstances in which the employee and their family find themselves.
Companies face stricter obligations when responding to work-life balance requests:
Any request must be resolved within a maximum period of fifteen days, and
The company must respond in all cases to avoid the request being deemed granted by default:
- It must notify the employee of acceptance of the request.
- If it does not accept, it must put forward an alternative proposal with full reasoning.
- Or it must formally refuse the request, again with full reasoning.
LIMITS ON THE RIGHT TO WORK-LIFE BALANCE:
It should be noted that we are dealing with
A return to normal working hours occurs essentially in two situations:
- When the period originally agreed upon comes to an end.
- When the cause that justified the reduction ceases to exist.
Paid leave extended to de facto couples:
- The 15-day paid leave entitlement on marriage
- The leave under Article 37.3.b) now reads as follows, with new provisions highlighted in bold:
- Five days for a serious accident or illness, hospitalisation, or surgical procedure not requiring hospitalisation but requiring home rest, affecting the spouse,
- Two days for the death of the spouse,
We note that it is worth considering what proof of cohabitation the employee must provide to demonstrate their situation, and we consider that the most appropriate document for this purpose is the municipal registration (empadronamiento) certificate.
De facto couples may also apply for unpaid leave for the birth and care of a child.
The possibility for de facto couples to apply for voluntary unpaid leave (Article 46.3 of the Workers' Statute) is added in the event of
New grounds for contract suspension: parental leave:
The new Article 48.bis introduces the right for employees to take
- the leave will be of a duration
- it may be taken on a full-time basis or as part-time working hours.
- It is a right available to all employees, male or female, and may not be transferred to another person.
- It will be for the employee to specify the start and end dates of the leave period or, where applicable, the individual periods of leave.
- It must be communicated to the company at least ten days in advance (unless otherwise provided by the collective bargaining agreement).
- The company may defer the granting of leave for a reasonable period, with written justification and after having offered an equally flexible alternative arrangement:
- where two or more employees generate this entitlement in respect of the same qualifying individual
- in other circumstances defined by collective bargaining agreements
New grounds for dismissal to be declared null and void:
The new wording of Articles 53.4.a and b broadens the grounds on which a dismissal may be declared null and void, specifically when:
- the dismissal is related to having requested the new work-life balance leave under Article 34.8 of the Workers' Statute.
- the dismissal is related to having requested the new parental leave provided for in Article 48.bis
It is worth recalling that dismissals are null and void where they involve a breach of a fundamental right (Articles 14 to 29 of the Spanish Constitution) or where the law expressly provides for this.
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