Amendment of Article 34.8 of the Workers’ Statute: “à la carte working hours”?

Written on 25 Jul 2019

Royal Decree-Law 6/2019, of 1 March, on urgent measures for equal treatment and opportunities for women and men in employment and occupation ("RD 6/2019"), amends Article 34.8 of the Workers' Statute ("WS"). It introduces the autonomous right of workers to request the adaptation of the length and distribution of working time for reasons of reconciling work and family life; what is popularly known as "à la carte working hours".

In the previous wording of Article 34.8 WS, the adaptation of the working day (resulting from the right to the conciliation of personal, family and working life) was conditional on collective bargaining or individual agreement between the employer and the worker (the latter had to respect, in any case, the provisions of collective bargaining). With the modification introduced by RD 6/2019, the adaptation of the working day for reasons of conciliation is configured as an autonomous right. It allows all workers to request the adaptation of the duration and distribution of their working day; as well as altering the form of work provision (which includes the possibility of requesting to telework). All this without the need to reduce the working day of the worker and, therefore, suffer the corresponding salary reduction.

However, Article 34.8 WS itself establishes the limit to this autonomous adaptation of the working day, in order to avoid it being a real “working hours à la carte”: “Such adaptations must be reasonable and proportionate in relation to the needs of the worker and to the organisational or productive needs of the business”. In other words, the request to adapt the working day is limited by the reasonableness and proportionality of the proposed modification, which will be analysed in the light of the company’s organisational and production needs.

To exercise this right, the legislator has established a specific procedure, which begins with the workers´ request submitted to the company. Such request opens a period of negotiation between the parties, the duration of which may not exceed 30 days, during which the parties shall set out their needs, which must be “reasonable” and “proportionate”. Once the negotiation period has elapsed, the company may opt for one of the following alternatives: reject the proposal, accept it or present an alternative that enables the worker’s conciliation needs. In any event, it should be noted that if the answer is no, the company must state the objective reasons on which it bases its decision.

Likewise, in the event of the company’s refusal, the worker may, within the following 20 days and without the need for prior conciliation, file a claim against the company. Such claim will be processed through the procedure established in art. 139 of the Law regulating the Labour Jurisdiction, and before the sentence that finalises the procedure there is no right to appeal.

The employer may not refuse the worker’s request unless he has “objective reasons” for doing so. In this sense, it will be the Labour Courts that, in future rulings to which this new right will surely give rise, will specify what can be qualified as “objective reasons” valid for refusing an application of working time adaptation. To this effect, the needs and size of the company will be analysed; the more resources it has, the more difficult it will be to justify its refusal to accept the employee’s request. In particular, it seems logical to think that for companies providing services in a certain time slot it will be simpler to reject requests to adapt the working day.

Finally, it also remains to be seen what the specific scope of collective bargaining is in this new right to request the adaptation of the working day. Specifically, it will be up to the Labour Courts to determine whether collective bargaining can affect the content of the right (by limiting the exercise of the request for adaptation of the working day by workers), or whether it can only have an impact on the exercise of the right by workers (i.e. on the procedural and processing issues of the request).