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The right to adjust working hours and post-covid challenges in Spain
05/08/2021
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Authors
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Rubén Agote
Rubén Agote is a partner at Cuatrecasas
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Ana Campos
Ana Campos is a senior associate at Cuatrecasas

In March 2019, Royal Decree-Law 6/2019, on urgent measures guaranteeing equal treatment of men and women and equal opportunities in employment and occupation (RDL 6/2019), amended article 34.8 of the Workers Statute (WS), significantly rewording the right to adjust working hours. RDL 6/2019 defined it as a right of “autonomous” exercise, although subject to collective bargaining or individual worker-employer negotiations.

Under this right, workers can request the adjustment of their working system and hours (without reducing their working day or their salary accordingly) in various ways, including flexible working hours and remote working.

The predictions made then about the significance and actual impact of this new wording have become a reality; workers’ requests for the adjustment of working hours and systems have increased since the entry into force of RDL 6/2019.

These requests have resulted in a significant number of court judgments issued in the past two years. After reviewing more than a hundred of them, some conclusions are relevant for companies when managing these work-life balance requests.

Key aspects of judgments on the adjustment of working hours

  • Women exercise this right more than men. This work-life balance right is mostly exercised by women: 74% of the requests for adjustment of working hours come from women, whereas the remaining 26% are made by men. Also, 94% of those requests are based on childcare needs.
     
  • Combination with a reduction of working hours. Almost 50% of the requests for adjusting working hours rely on article 34.8 WS, together with the right to reduce working hours (article 37.6 WS), either through a double request or because the applicants had already reduced their working hours for work-life balance reasons. This combination or double request can be due to the lesser flexibility of article 37.7 WS, which refers to the “standard working day”.
     
  • A significant presence of shift changes and specification of working hours. Of the requests for adjustment of working hours, the most common are requests for shift changes or fixed shifts (44%); and for the specification of working hours (39%), whereas requests for remote working and relocation only account for 7% and 1% overall, respectively. Workers have also relied on article 34.8 WS to request that a previously applicable working day be re-established or maintained (9%). Also, in over 60% of the reviewed judgments, the request for adjustment entailed a modification of the worker’s standard working day.
     
  • The importance of individual negotiations. The existence of negotiations between the applicant worker and the employer is one of the aspects considered by courts in their judgments (in 57% of them). There is a high correlation between a lack of negotiation and the acceptance of a request for adjustment: 90% of the judgments expressly stated that there had been no negotiation between the parties except the request for adjustment.
     
  • The courts rarely award damages. Until now, courts have only awarded damages in exceptional circumstances. Only 21% of the judgments find that the worker is entitled to moral damages. The average amount of compensation for damages is €2,270.
     
  • Weighing interests: a key in judicial proceedings. The judgments weigh the reasons and needs provided by both parties, (ie, the work-life balance needs in the worker’s request and the company’s organisational or production needs raised by the employer to reject or qualify the request). This weighing is necessary to determine the proportionality of the request and the grounds to reject it. For example, courts have found that reasonable grounds to reject the request for adjustment include difficulties that force a company to rearrange a department’s operation (due to increased activity on certain days or at certain times); or difficulties in specifying working hours between two shifts. Employers cannot reject workers’ requests on grounds that are unreasonable or based on organisational precedents. Therefore, sound legal advice is essential for companies to avoid risks.

Upcoming working hours challenges for companies

Due to the health crisis caused by covid-19, the adjustment of working hours has been temporarily amended again through the MECUIDA plan.

Since the beginning of the state of emergency in March 2020 and until 30 September 2021, if the request for adjustment is based on exceptional circumstances related to the covid-19 health crisis (eg, care for sick or quarantining persons), the procedural requirements of article 34.8 WS are eased (eg, the 30-day negotiation period simply turns into an obligation for the company to respond as soon as possible).

The MECUIDA plan, together with the restrictions on mobility and the mandatory or strongly recommended remote-working system over recent months, have significantly reduced the requests for adjustment of working hours under article 34.8 WS. However, we expect an increase in these requests after the end of the state of emergency and during the steady return to the normal provision of services by companies. In particular, because of the experience with remote working, we expect more workers to request it; and companies and courts to be more open to offering a flexible work system.

We believe that, from 2021, companies’ ability to manage these requests and define flexible working policies will be a major challenge when it comes to aligning human resource management with sustainability and ESG goals.