Spain: Workday à La Carte

26 June 2019

And the reason is simple: in the midst of all the commotion the recording of the workday has generated (and continues to do so), it is easy to forget another of the measures adopted this year which, nevertheless, will generate the same or more potential for conflict (in the broadest sense of the word) as its neighbour from section 9 of Article 34 of the Workers’ Statute relative to the recording of the workday.

It is new, so-called “workday adaptability” (adaptabilidad de la jornada), foreseen in Section 8 of the aforementioned precept and that, although it was regulated in the wording of 29 December 2018 of the Workers’ Statute, was further developed this past March. This development, again, went hand in hand with a Royal Decree-Law; specifically Royal Decree-Law 6/2019, of 1 March, on urgent measures for the guarantee of equal treatment and opportunities among women and men in employment and work.

Indeed, on this occasion, the Government invoked the “inequality, visible in the salary gap,” the fact that said inequality had not been reduced in past years and the extreme and urgent need that would imply correcting said circumstances in an era in which “women are facing the challenges of Industry 4.0.”

In this way, Article 34.8 of the Workers’ Statute went from the possibility of regulating adaptability of the workday to practically obligating companies. And since 8 March 2019, workers have a path to adaptability that companies can hardly refuse. In addition, once the worker has requested the adaptability of his/her workday, the company must justify in detail the objective reasons (understood to be economic, technical, organisational and/or production reasons) for its negative response. This means that, unless one of the aforementioned reasons occurs, the companies almost cannot refuse to grant adaptability of the workday if requested.

To the foregoing it must be added that from the time said adaptability is granted and until the period foreseen for such adaptability ends, workers may request at any time to return to their former workday or contract type prior to the request for adaptability, when (i) the period foreseen for such adaptability ends, or (ii) a change in circumstances occurs that justifies it.

And if differences of opinion arise? The new wording of Article 34.8 of the Workers’ Statute remits to the procedure established for such purpose in Article 139 of the Regulatory Law of the Labour Jurisdiction (Ley Reguladora de la Jurisdicción Social), pursuant to which workers may file a lawsuit with the labour courts against the company’s decision which, additionally, if applicable, could be added to the corresponding claim for losses and damages. The proceedings in question would be carried out with urgency and preference, where a hearing would be granted to the parties within five days following the admittance to court of the corresponding lawsuit and where a ruling would be handed down within three days. No appeal would be admissible against this ruling unless the aforementioned corresponding claim for losses and damages was added to the case and unless, due to the amount thereof, we were left with an appeal to be made to a higher court (recurso de suplicación).

In summary, the new wording of Article 34.8 of the Workers’ Statue will oblige companies to adapt swiftly to the “demands” of their workers, pushing them into an area of maximum structural flexibility which, nevertheless, on many occasions is difficult to realise for some and impossible for others, such as smaller companies. This is especially true when said flexibility must be realised (depending on the case) in the abrupt period of thirty days to be counted from the day on which the request was made.

This is a measure which, in effect, seeks to look out for work-family balance. Although it is a good initiative, the truth is that similarly to its neighbour in Section 9 of the aforementioned Article 234 of the Workers’ Statute, it grants fleeting and scarce terms for adaptation and restructuring. At the same time, it encompasses a generality which is difficult to materialise within the framework of corporate sustainability and which, for sure, will result in conflict between companies and workers.   

For further information: Patricia Rivera