Written by Josep Conesa
Employment and insolvency lawyer
work-life and family balance. article 34.8 of the workers' statute and article 139 of the labour procedure act — flexible working hours on demand
The new Royal Decree-Law 8/2019, of 8 March, on urgent measures for social protection and combating precarious working conditions in relation to working hours has introduced a series of urgent measures to guarantee work-life balance and equal treatment and equal opportunities for women and men in employment and occupation.
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A number of measures have been structured around the concept of equality, introducing amendments to the main employment legislation (the Workers' Statute, the Basic Statute of Public Employees, the Self-Employed Workers' Statute and the General Social Security Act (LGSS)); the legislation also includes terminological changes, replacing references to "maternity or paternity" with "birth" and "employee" with "working person".
Article 34.8 of the Workers' Statute now regulates the employee's right to adapt the duration and distribution of their working hours.
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THE NEW employee RIGHT TO ADAPT THE DURATION AND DISTRIBUTION OF WORKING HOURS Article 34.8 of the Workers' Statute:
The revised wording of the Workers' Statute establishes that employees have the right to request adaptations to the duration and distribution of their working hours.
The new employee rights are:
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the right to adapt the duration of working hours, both in terms of timing and format.
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the right to adapt the distribution of working hours, both in terms of timing and format.
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the right to request remote working
The Statute also provides that, in the case of employees who have children, this right may be exercised until the child or children reach the age of twelve.
The literal wording of this provision leaves something to be desired, as it does not specify what applies to employees without children. Applying the principle of "in dubio pro operario" (interpretation in favour of the worker where the law is ambiguous), one could argue that all employees are entitled to invoke this right — however, the legislature appears to have intended it solely for parents of children under the age of 12. Indeed, the article refers to the "right to reconcile family and working life", deliberately avoiding the broader term "personal and working life".
The law specifies only that any adaptation must be reasonable and proportionate in relation to both the needs of the employee and the organisational or operational requirements of the company.
NEW CASE LAW FROM THE Supreme Court:
Requirement to respond stating ETOP grounds:
We now have a clear picture of how far this right extends, as the Supreme Court has ruled on the matter in its recent ruling 379/2023 of 25/05/2023, which you can download at this link. The Court clarifies that such a response is REASONABLE AND PROPORTIONATE, in light of the position taken by certain trade unions and courts that had already obtained rulings upholding those employee rights.
The Supreme Court specifies that "not every decision regarding the specification of working hours necessarily entails discriminatory treatment on grounds of sex", but that this will depend on the factual circumstances of each case, and that "it is the company that must demonstrate that its decision is unrelated to any such discriminatory purpose". In other words, the company must show that its decision is based on reasons other than discrimination — and this is achieved by setting out the grounds that prevent it from accommodating the employee's request, such as ECONOMIC, TECHNICAL, ORGANISATIONAL OR PRODUCTION-RELATED (ETOP) REASONS.
The involvement of an employment lawyer is therefore crucial to ensure that the company's response to employees' requests for specification of working hours is properly reasoned and justified.
Changes to shift systems:
Also significant is the following ruling of the Supreme Court 983/2023, which establishes that the specification of working hours may only be made within the limits of the employee's standard working schedule. That is, any reduction should take place without altering the shift working arrangement that the employee was previously carrying out and which constituted a specific characteristic of the standard working hours agreed with the employee. In other words, Article 35.6 of the Workers' Statute does not encompass the possibility of varying the ordinary working schedule arrangement, nor does it permit the unilateral modification of the shift working system. Replacing a shift-based working system with a single morning-only shift does not amount to a simple reduction in working hours — it constitutes an alteration of the ordinary working schedule.
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PROCEDURE FOR REQUESTING WORK-LIFE BALANCE ARRANGEMENTS:
The Workers' Statute leaves the specific terms of exercise open to collective bargaining, so it is advisable to consult the collective bargaining agreement applicable to your company. You can look yours up here:
Link to collective agreement search tool
If the collective bargaining agreement does not specify the procedure, the following will apply:
- - upon receipt of a request to adapt working hours, the company will open a negotiation process with the employee for a maximum period of thirty days.
- After 15 days (if no response is given within the deadline, the requested adaptation will be deemed tacitly granted!):
- the company will notify the employee of its acceptance of the request,
- put forward an alternative proposal that meets the employee's work-life balance needs,
- or notify its refusal. In the latter case, the objective reasons underpinning the decision must be stated.
Any disagreements arising between the company's management and the employee shall be resolved by the employment jurisdiction through the procedure set out in Article 139 of Law 36/2011 of 10 October, regulating the Labour Courts (Ley Reguladora de la Jurisdicción Social).
The employee shall have the right to request a return to their previous working hours or contractual arrangement once the agreed period has ended, or when a change in circumstances justifies it, even if the originally agreed period has not yet elapsed.
THE PROCEDURE UNDER ARTICLE 139 OF THE LABOUR COURTS ACT concerning work-life balance rights recognised by law or collective agreement:
a) The employee will have twenty days to file a claim before the employment tribunal from the date on which the employer communicates their refusal or objection to the proposal put forward by the employee.
b) Prior to bringing a judicial claim, the employee must first attempt administrative conciliation.
c) The judge may request a report from the joint monitoring bodies overseeing the company's equality plans for consideration in the ruling. If you would like to know how to draw up an equality plan for your company, please follow this link:
d) The procedure will be urgent and given priority processing (the hearing should be scheduled within 5 days of the claim being admitted, and the ruling should be handed down within 3 days).
e) The first-instance ruling is not subject to appeal (unless a claim for damages has been joined that, by reason of its amount, could give rise to a suplicación appeal — which is why it is common legal practice in this field to include a claim for moral damages, bearing in mind that the minimum threshold for an appeal under the LSJ is €3,000 ;-)
f) Even where an appeal is lodged, the ruling will be enforceable from the moment it is handed down.
JOINING A DAMAGES CLAIM TO THE WORK-LIFE BALANCE PROCEEDINGS:
In proceedings asserting the right to a work-life balance measure, a claim for damages suffered by the employee may be joined, limited strictly to those arising from the employer's refusal of the right or delay in implementing the measure. The employer may be relieved of liability if they have given effect to the measure proposed by the employee, at least on a provisional basis.
TYPES OF PROCEEDINGS AVAILABLE:
The procedure described above — to which a damages claim may also be joined — applies equally to the exercise of:
- the rights of employees who are victims of gender-based violence as established by law,
- a reduction in working hours with a proportional reduction in salary
- a reorganisation of working time, through:
- adjustment of working schedule,
- application of flexible working hours
Interim measures:
The interim measures provided for under Article 180 of the Labour Jurisdiction Act may be requested in the course of proceedings.
It is therefore possible to request, together with the claim, the suspension of the effects of the contested act, as well as any other measures necessary to ensure the effectiveness of the judicial protection that may be granted in the ruling.
SUBSTANTIAL MODIFICATION OF CONDITIONS OR ARTICLE 34.8 OF THE WORKERS' STATUTE?
It is common for the company to respond to such a request by asserting that a different schedule applies. in accordance with the ruling of the Supreme Court 396/2023, the appropriate procedure remains that of Article 139 of the Labour Jurisdiction Act (LJS) and not the procedure for substantial modification of working conditions (Art. 138 LJS). The objection of procedural inadmissibility cannot be upheld; instead, proceedings must be redirected under Article 139, as expressly required by Article 102.2 of the LJS.
CONCLUSIONS DRAWN FROM EMERGING CASE LAW:
- Although case law has initially been narrowing the scope of the right under Article 34.8 of the Workers' Statute, with some rulings favouring the company, noteworthy is the ruling of the High Court of Justice (TSJ) of Galicia, which granted a shift change on the grounds of the employee's study needs, linked to the right to professional and economic advancement under Article 24 of the Workers' Statute and Article 27 of the Spanish Constitution.
- It is critically important that the company engages in negotiation. If the company fails to respond or actively obstructs the employee's right, outcomes such as the following may arise — where the claim for work-life balance brought by the employee was upheld:
"In addition to all of the above, it must be noted that the company made no attempt at any point to negotiate the specific working hours with the claimant, which makes it considerably more difficult for the claimant to effectively exercise their right to reconcile family and professional life, even if not to the full extent requested. The provision governing this right establishes a duty to negotiate,
even if the company ultimately retains the ability to refuse the request by setting out the reasons it considers appropriate — but such refusal cannot follow an absence of the negotiation required by law."
- It is essential to have the assistance of a specialist employment lawyer in employment proceedings. It is common for an employee to respond by initiating the conciliation procedure under Article 34.8 of the Workers' Statute when the company has in practice introduced substantial changes to working conditions without following the formal requirements set out in Article 41 of the Workers' Statute. This may give rise to the employee's right to claim termination of the employment contract with entitlement to the maximum statutory compensation for serious breach by the employer.
