What to do when a worker requests a reduction or adaptation of working hours?
One of the most frequently asked questions we receive from our clients is how to proceed when they receive a request for a reduction or adaptation of working hours from one of their employees.
It is becoming increasingly common for workers to want to exercise the rights that the applicable regulations establish in terms of reconciling work and family life, especially the adaptation of the length and distribution of the working day, the organisation of working time and the form of service provided for in Article 34(8), as well as the reduction of the daily working day and the specific working hours established in Article 37(6) and (7) of the Workers’ Statute.
In which cases can a request for a reduction or adaptation of working hours be refused?
Thus, the first question our clients ask us is whether the company can deny the exercise of the right they have requested, and the answer is that it can deny the request to adapt the working day or to specify the timetable of the reduction of the working day exercised, as these rights of conciliation are not absolute and workers cannot exercise them in an absolutely free manner. The limits to the exercise of such dismissals are:
- In the case of a request to adapt the working day, the request must be reasonable and there must be adequate proportionality between the worker’s needs for work-life balance and the company’s organisational or production needs.
- In the case of the specific timetable resulting from the reduction of the working day for the care of children or people with disabilities or who are unable to look after themselves, the worker may not be denied the right to reduce the daily working day by between one eighth and one half. However, there are other limits, such as the fact that it must be set within the daily working day, as well as the organisational and productive needs of the company.
In order to determine the applicability of the limits to the exercise of workers’ rights, the first thing to do is to analyse the job and the duties performed by the worker who has requested the exercise of the corresponding work-life balance right. Thus, we analyse whether the application of the aforementioned limits would justify the denial of the worker’s request.
Both rights can be regulated in the different sectoral collective agreements, although normally this is not the case, but rather they usually refer to what is expressly established in the general regulations.
Differences in the processing of applications for adaptation or reduction of working time
However, we must also clarify that there are important differences in the processing of requests for an adaptation or reduction of working hours, which we are going to analyse. The first is that the company must respond to the request for an adaptation of the working day. Thus, a negotiation period of a maximum period of fifteen (15) days is opened, and it is understood that the requested adaptation will be accepted if the company has not replied within this period expressly and with reasons.
For its part, the reduction in working hours only establishes the need to notify the company fifteen (15) days in advance, but does not establish a specific period within which the company must reply. However, it is advisable to ensure that the company replies to the request before this period has elapsed, so that the worker knows for sure whether or not he/she can start the reduction in working hours with the specific timetable proposed in the request.
In the event of discrepancies between the company and the workers requesting the exercise of these rights, in the determination of the specific timetable, it will be necessary to resort to the specific procedures contemplated in the Law Regulating Social Jurisdiction.
Nullity of dismissals of staff who have had their working hours adapted
Finally, and with regard to the most relevant issues for the exercise of these work-life balance rights, it should be noted that the latest labour reform also amended article 55 of the Workers’ Statute to include that dismissals of workers who are enjoying the exercise of work-life balance rights, or even of those who have requested them, even if they have not started to enjoy them and have even been denied by the company in a reasonable and justified manner, should be declared null and void.
It is true that the current wording of this article 55 of the Workers’ Statute has been modified since 22 August last by a reform of labour legislation which was being processed before the modification which introduced the objective nullity of dismissals of workers who had requested the exercise of these conciliation rights. However, this does not mean, as has been suggested in some forums, that these people can be dismissed, as they will always have the generic protection derived from the principle of non-discrimination.
Do you need advice? Access our area related to requests for reduction or adaptation of working hours: