In today's post we are going to break down, in broad strokes, the two “legal forms" that he status of workers (ET) collects so that all working people can reconcile their personal and professional lives. On many occasions, the applicant combines/mixes the best of each form, but in reality each one has its own procedure.
Family conciliation
On the one hand, we find article 37.6 and 37.7 of the ET, this is the shape which has historically been used, and on the other hand, there is another possibility of family conciliation through article 34.8 of the ET, the misnamed “a la carte day” of 2019.
To do this, first let's get to know the two articles where they appear:
- Article 37 – section 6: “Whoever for reasons of legal custody has direct care of a child under twelve years of age or a person with a disability who does not carry out a paid activity will have the right to a reduction in the daily work day, with the proportional decrease of the salary between, at least, one eighth and a maximum of half of the duration of that one.”
- Section 7: “The specification of hours and the determination of permits and reductions in working hours, provided for in sections 4, 5 and 6, will correspond to the worker within their ordinary working day. However, collective agreements may establish criteria for specifying the hours of the reduction in working hours referred to in section 6, taking into account the rights of conciliation of the personal, family and work life of the worker and the productive and needs. organizational structures of companies. The worker, unless there is force majeure, must notify the employer fifteen days in advance or as determined in the applicable collective agreement, specifying the date on which the infant care leave or the reduction in working hours will begin and end.”
- Artículo 34.8: “Las personas trabajadoras tienen derecho a solicitar las adaptaciones de la duración y distribución de la jornada de trabajo, en la ordenación del tiempo de trabajo y en la forma de prestación, incluida la prestación de su trabajo a distancia, para hacer efectivo su derecho a la conciliación de la vida familiar y laboral. Dichas adaptaciones deberán ser razonables y proporcionadas en relación con las necesidades de la persona trabajadora y con las necesidades organizativas o productivas de la empresa”.
Conciliation
Regarding the first form of family conciliation (art.37), we could summarize it as follows:
- Being in charge of a child under twelve years of age, a person with a disability or caring for a family member who cannot take care of themselves.
- Reduction of working hours/salary between one eighth and half of the working day.
- The time specification must be within the ordinary working day.
- Notice period of 15 days.
Regarding the second form of family conciliation (art. 34.8), we could summarize it as follows:
- Applicable to any situation, family relationship and/or motivation.
- In the case of children, the ET clarifies that up to twelve years of age.
- A negotiation process is opened for a maximum of 30 days between the worker and the company.
- Upon request made by the worker, the company may (i) grant, (ii) propose an alternative, and (iii) or deny for objective reasons.
- The worker may return to his or her previous schedule once the agreed period has ended, and even before the end of said period.
In both cases, and in the event of discrepancies, the worker may file the corresponding claim in the Social Court, within a period of 20 days. The action for damages caused by the worker may be added to this claim. The procedure will be urgent and preferential. It does not admit an appeal, except when compensation for damages has been added to the claim that, due to its amount, admits the appeal.
Each sentence is individual, and cannot be extended to other companies and/or people. It is not the same denial that occurs in a company with many work centers, with a lot of staff, high turnover; than what could be found in a small company with a single work center, few staff, and moderate billing.
The Constitutional Court has already recognized in several rulings that family conciliations must be treated from a constitutional perspective, and not just ordinary legality.
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