The Superior Court of Galicia, in its judgment of May 28, 2019 (Available here) has established that it is not up to the worker to prove that there is an impossibility of reconciling family and work life in order to demand a tailored work schedule for these reasons.
In this ruling, a worker who had been enjoying a reduction in working hours for a dependent child was granted the hours she requested, and although at first glance it may seem like more of the same as in many other rulings issued on the same subject, the curious thing about the matter lies in the fact that the judge emphasises that the employee cannot be required to prove in detail the impossibility of reconciling her family and work life.
The company demanded proof of the impossibility
Her company refused because it considered that she had not provided sufficient proof of her need. On the one hand, it considered that with her daughter's school schedule she could easily stay for lunch or do extracurricular activities, and on the other, it did not prove that her husband could not balance his work or that he did not have the help of grandparents or third parties.
But at this time when it is so difficult to reconcile our lives with work, it is irrelevant to the judges that the school our children attend does not have a canteen or extracurricular activities, and therefore, it does not have to be proven to the employer to whom the new schedule is requested. But even if there were, we must not forget that attending these activities entails a great economic cost for families, a cost that in many cases cannot be borne.
For the same reason, the worker cannot be required, since they are the ones who in most cases request the reduction and specification of hours, to prove that the father of the minors cannot adapt his working hours, or that he does not have help from third family members (grandparents) or non-family members, or that the requested schedule is the best for the enjoyment of the family as a whole.
Because the right to specific working hours is a very personal right that only allows restrictions by the company if both parents work for the same company, which is not the case.
There is no obligation to prove impossibility
It is not necessary to prove, or even mention, that the plaintiff's partner has a more or less difficult time than she in reconciling. And even less to allege that it can be the grandparents who take care of the minor. Because parental authority corresponds to the parents, who must support their children and not only financially, by giving them food, but also in a fundamental aspect such as education and company. And without reconciliation, it will be difficult to achieve.
The Court also relies on the fact that the schedule requested by the employee is one of those contemplated in the conciliation agreement and that the company has not proven that such a schedule is impossible or significantly burdensome in recognizing the right requested by the employee.
The latest jurisprudence on this matter
Recent case law has already stated that the right to a specific schedule cannot be denied solely for generic organisational reasons, but rather the impossibility or significant difficulty of accepting the proposed schedule must be specifically indicated.
It was the Constitutional Court that was responsible for outlining the minimum criteria in relation to the right to specific hours, and for indicating that generic formulas cannot be established. It must be investigated case by case and the particular circumstances must be analysed.
In short, the reduction of working hours, with specific hours within the regular working day, which does not imply a change in shifts or days of service, is the personal right of the worker and it is up to him or her to determine the specific hours.
And if a modification is necessary, either in the shift system or in the number of days of service provision, it is not automatically the responsibility of the employee to specify it, but the concurrent circumstances must be considered, since not doing so, and directly denying the reduction in working hours proposed by the employee without considering the rights at stake, constitutes a violation of the right to non-discrimination based on sex.
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