The Superior Court of Justice (TSJ) of the Canary Islands has issued a novel ruling that, if consolidated as a doctrine, could represent an important reinforcement of the conciliation rights of many workers with small children. The resolution establishes that, when an employee asks his company for an adaptation of the working day, not only the personal needs of the applicant and the organizational circumstances of the company must be taken into account, but also the “best interests of the minor”. A principle enshrined in the legal system whose objective is “to guarantee the full and effective enjoyment of all the rights recognized by the Convention [Internacional sobre los Derechos del niño] and the holistic development of the child, “the court explains. In this way, the petition would be strengthened and would require a greater burden of justification on the part of the company to be able to legitimately deny it.
In the prosecuted case, the request of a hotel worker, with the category of second governess, is analyzed, who requested from the management of the same a time adjustment consisting of setting her weekly payments on Saturday and Sunday. Her days off, until that time, were Thursdays and Fridays.
As explained in the proven facts, the applicant, a mother of two children, had previously requested a reduction in working hours for her care. The response of the company was to agree to reduce her working hours, but not to grant her the specific hours she proposed, which included freeing on weekends. The reason, according to the company, was that the first housekeeper did not work on Saturdays and Sundays and, as she was the substitute, she could not be absent on those days. This petition has already been the subject of judicial challenge by the affected party, without being able to get the courts to agree.
Months later, the worker again made a request for an adjustment of the hours, but without reducing the working day. She leaned in article 34.8 of the Workers’ Statute (ET), amended in 2019 and which introduces what has been baptized as a la carte day. This provision requires that, after receiving a request for a change in the distribution or the duration of the working day, the company must open a negotiation period of 30 days with the worker. In the event that he does not accept your proposal, he will be obliged to propose alternatives. And if you finally reject it, you must justify your decision with objective data.
The worker’s request was again denied, a response that the affected party challenged. The court of first instance of Las Palmas de Gran Canarias that examined the case rejected the claim.
Hourly adjustment and compensation
However, the judgment of the Supreme Court, issued on September 1 and of which Judge Gloria Poyatos (known for promoting the introduction of a feminist vision in its resolutions and, in general, in the judiciary as a whole) has been a speaker. , accepts the appeal raised by the worker and grants the requested time adjustment.
The resolution recognizes that the company respected the procedure required in article 34.8 (that is, it carried out the negotiation period, offered alternative proposals and justified the refusal), but, after applying the gender perspective and the childhood perspective, It considers that “the organizational cause that prevents it from agreeing to recognize the worker’s weekly payment during the weekends has not been proven.”
After analyzing the work organization exposed by the hotel management and the definitions contained in the State Labor Agreement of the Hotel Industry, the magistrates conclude that “the administration functions that correspond to the category of governess” that are carried out from Monday to Friday “Weekends are not necessary.” Requiring, only, someone to organize the work of cleaning the floors. Likewise, they point out that when the plaintiff has found herself in a situation of temporary disability, her duties on Saturdays and Sundays have been assumed by deputy governors, a circumstance that “shows that they have the necessary training” for such performance.
Therefore, the sentence concludes, “the organizational cause put forward by the company cannot be considered an objective, reasonable and proportionate reason.” And, likewise, it shows that “the defendant (the hotel) can and must comply with the time adjustment requested by the plaintiff (the employee)”.
In addition, the Chamber condemns the hotel to pay compensation of 3,125 euros to the plaintiff for the non-pecuniary damage produced by the “unease and emotional affectation” due to having to join her job “in unsustainable conditions to be able to reconcile the demand for caring for your child and performing your job. “
Gender and childhood perspective
The sentence is the second that applies the concept “perspective of childhood”. At the end of last year, the same court already used it to grant the benefit for risk during breastfeeding to a female worker, taking into account the impact that being deprived of their right to natural food would have on the infant child “in a phase vital essence in her short life “, according to the resolution, of which Gloria Poyatos was also a speaker. The novelty of this case is the application of the same concept to the exercise of conciliation rights by employees.
In the justification of the ruling issued on September 1, the Supreme Court explains that “there is another impact on I. (initial of the three-year-old son’s name), causing the request for time adjustment and that he may be deprived of his right to receive the family care and attention that it requires, in an essential phase in its short life, in which the child needs the emotional contact derived from the affective bond established with its parents “.
What are the consequences of introducing this perspective? As the same resolution is in charge of detailing, it introduces a third element of weighting in the analysis of the case. Along with the right to work and family conciliation of the plaintiff, and the organizational causes of the employer, “the best interests of the child causing the labor law that is exercised.”
The concept of “gender perspective” has a longer history in jurisprudence. In fact, it was applied by the Supreme Court itself for the first time in May 2018. This term is intended to detect and eliminate the situations of discrimination suffered by women. In the case prosecuted, the Canary Islands Supreme Court remarks that “the disproportionate impact of gender that the rights related to family and work conciliation have, leads us, as a public authority, to compulsorily integrate the gender perspective in the interpretation and application of the right claimed “.