reduccion-jornada

This post is also available in: esEspañol

The Las Palmas de Gran Canaria High Court of Justice (“TSJGC”) recently published a judgment on March 12, 2019 (case no. 1596/2018) that could radically change the concept of compensation for DAMAGES IN CONCILIATION PROCEEDINGS ON THE BALANCE BETWEEN PERSONAL, FAMILY AND WORKING LIVES. The dispute arose when a mother REQUESTED TO HAVE HER WORKING HOURS REDUCED FOR CHILDCARE, changing from rotating morning and afternoon shifts to a set morning schedule. The company denied her request and proposed that she continue to work six afternoons per month. This disagreement led the employee to file a claim in a special proceeding on balance between personal, family and working lives (under article 139 of the Spanish Labor Court Act [Ley Reguladora de la Jurisdicción Social] together with a claim for damages, although without claiming an violation of her fundamental rights. The labor court sustained her claim partially, ordering the company to grant her schedule request (on the grounds that its refusal was unjustified and unreasonable), but denying her claim for damages. However, the employee filed an appeal for reconsideration and the TSJGC has now partially sustained her claim for moral damages. The key points of the TSJGC’s judgment, which may open the door to a new interpretive precedent, are as follows: • It should first be noted that employees’ right to shorter working hours was analyzed from a constitutional perspective in view of the prohibition of sex-based discrimination and of employees’ right to balance their personal, family and working lives (articles 14 and 39 of the Spanish Constitution). According to the literal text of the judgment, section 37 of the Spanish Workers Statute (Estatuto de los Trabajadores) should be interpreted and applied from a “gender perspective” because of its disproportionate impact on women. It is clear that not only has the line of interpretation been picked up of the right to balance between personal, family and working lives of Constitutional Court Judgment 3/2007 (“The constitutional dimension of the measure envisaged in subsections 37.5 and 37.6 of the Spanish Workers Statute […] must prevail and provide orientation to resolve any interpretive doubts”), but there is also the use from the perspective that lawmakers assumed in the recent Spanish Royal Decree Law 6/2019, which could now be said to be seeping into court decisions. • In view of the constitutional dimension of the right to reduced working hours, the TSJGC expressly recognized that employees have an UNQUESTIONABLE RIGHT to claim damages together with their legal claims to balance their family and work lives. • Yet not only is the right to claim damages undeniable, but the judgment also seems to create a QUASI-OBJECTIVE RESPONSIBILITY FOR EMPLOYERS, because it considers the company’s unjustified refusal itself to grant the schedule request caused harm to the employee. This means that the judgment found that harm was directly proven, and the legal analysis of whether it should be sustained focused on whether there was a causal relationship between the harm and the employer’s conduct. In short and in view of this judgment, companies should get used to these compensation petitions in scheduling claims, which will in turn open the door to appeals for reconsideration in this type of proceedings that, due to the subject matter, would not have access to them. More specifically, large companies should pay special attention, since the judgment specifically assumed that, because of its size, the defendant company had greater organizational capacity and therefore fewer reasons for refusing the schedule request. Moreover, the judgment considered the fact that the company had an internal equality plan to be an aggravating factor, because the plan meant that the company should have been more aware of its employees’ difficulties balancing their work and family lives. Because of its potential impact, here it is important to bear in mind that SPANISH ROYAL DECREE LAW 6/2019 STIPULATES THESE EQUALITY PLANS MUST BE IN PLACE IN COMPANIES WITH 50 EMPLOYEES and not just in those with 250 as when it came into force. It should also be emphasized that the recent bolstering by Spanish Royal Decree Law 6/2019 of employees’ right to adjust their work schedules to balance their work and family lives without having to reduce their hours, which puts the onus on companies to justify schedule change refusals, could also include this constitutional dimension and the subsequent right to compensation for moral damages. We will pay close attention to how legal doctrine evolves on this issue.

This post is also available in: esEspañol

Autores:

Asociada

6 artículos

Asociada Senior del área de laboral. Elisabet se ha especializado en derecho laboral y, en particular, en cuestiones de flexibilidad interna, operaciones de cambio organizacional y modificaciones de condiciones de trabajo. Asimismo, es coautora en varios libros y monografías.

elisabet.calzada@cuatrecasas.com

Asociada

8 artículos



irene.gombau@cuatrecasas.com

Leave a Reply

Your email address will not be published. Required fields are marked *