Article 37.6 of the Workers’ Statute (ET) establishes that anyone who, for reasons of legal guardianship, has direct care of a child under the age of twelve is entitled to a reduction in the daily working hours with a proportional reduction in salary of between at least one-eighth and a maximum of half of the duration of those hours.
As lawyers specialising in labour law, it is common for workers to make requests for ‘specific working hours’ together with their right to a reduction in working hours. These requests are supported by the legal text stating that ‘the specific hours of the reduction in working hours for legal guardianship correspond to the worker’, and the belief has been established that this is an absolute right of the worker, to which the company must yield.
However, this belief is erroneous, as the Supreme Court has always emphasised the jurisprudence of the Constitutional Court, according to which judicial bodies cannot limit themselves exclusively to the sphere of ordinary legality, but must weigh up and assess the constitutional dimension of all regulatory measures aimed at facilitating the compatibility of workers’ working and family life, both from the perspective of the right to non-discrimination on the grounds of sex or personal circumstances (STS 26-04-2023, in relation to STC 26/2011, of 14 March).
The High Court has clarified that the specific ‘personal and family’ circumstances of those seeking to exercise their rights to work-life balance must be assessed, including the age and school situation of the child and the employment situation of the other parent.
We cannot forget the role of collective bargaining, as section 7 of article 37 of the ET refers to the possibility of collective agreements establishing criteria for the specific working hours of the reduction in working hours, and makes express and joint mention of the rights to work-life balance and the productive and organisational needs of businesses.
As lawyers specialising in labour law, we can affirm that, in accordance with prevailing case law, there is no absolute right for workers to specify the hours for which they wish to reduce their working hours for the purpose of legal guardianship. The employer, after reviewing the collective agreement and, now also, the Equality Plans, may allege well-founded organisational and productive reasons that prevent the proper functioning of the company in order to oppose the granting of a fixed shift. It will be the judicial analysis of the needs and interests of both parties that will determine, in a judicial analysis, which interest should prevail.
For all these reasons, the Labour Law Department of BELZUZ ABOGADOS, S.L.P., as lawyers specialising in labour law, recommends obtaining appropriate legal advice in advance in the event of this type of conflict.