Workday Adaptation in Spain: An Unnoticed Measure with Noticeable Consequences in the Pandemic

5 May 2020 - Patricia Rivera Almagro

Stealthily and unnoticed. This measure is the type that has enormous repercussions, yet its adoption and scope somehow always go unnoticed.

Indeed, during the pandemic, this “innocent” measure managed to slip in under the rubric of “right to timetable adaptation and reduction of workday” in the wording of Article 6 of Royal Decree-Law 8/2020, of 17 March, on extraordinary, urgent measures to deal with the economic and labour impact of COVID-19. Undoubtedly you will remember it: the Royal Decree-Law which would arrive three days later and confined millions of Spaniards to their homes on 14 March 2020 as a consequence of the entry into force of Royal Decree 463/2020, of 14 March, which declares a state of alarm to deal with the health crisis situation caused by COVID-19.

Said Article 6 states that workers (both those that were already benefitting from it and those who were not) may request “the adaptation of their workday and/or the reduction thereof (…) when exceptional circumstances occur related to necessary actions to avoid community transmission of COVID-19.” According to the legislators, said circumstances would occur:

  1. When the presence of a worker for the personal and direct care of the persons indicated in the precept (spouse or de facto domestic partner (pareja de hecho) and family members related by blood up to the second degree) is necessary, whether due to age, illness or disability; and/or
  2. When, as a result of a decision by government authorities, the closing is ordered of educational centres or centres of any other nature that provide care and attention to people in need who, until such time, were in such educational centres or centres of any other nature; and/or
  3. When the person who was in charge of directly caring for and/or assisting the spouse or family member (up to a second degree) of a worker cannot continue with said care and/or assistance due to justified reasons related to COVID-19.

In this case, the legislators do limit the adaptation: it could imply (temporarily, exceptionally and limited to the duration of the COVID-19 period) a change in shift, alteration of timetable, flexible timetable, split or continuous workday, change in work centre, change in duties, change in the method of performing work, etc., provided that this is reasonable and proportionate in relation to the organisational needs of the company.

May this serve as a warning: if you believed that this matter could be postponed in order to concentrate efforts on the now famous, but formerly marginalised “force majeure ERTES” (temporary collective dismissal proceedings due to force majeure) (Articles 47.3 and 51.7 of the Workers’ Statute), you must keep in mind that the legislators again refer to the urgent and preferential proceedings of Article 139 of Law 36/2011, of 10 October, governing the labour jurisdiction.

Remember that? You’ve got it: the proceedings in accordance with which the workers could file a claim against the company decision before the labour courts, where a hearing would be granted for the parties within five days of admission of the corresponding claim and where a ruling would be issued within three days (against which there would be no appeal, except in the cases establish for such purpose). Given that the General Council of Judicial Power (Consejo General del Poder Judicial or CGPJ), in light of the aforementioned Royal Decree 463/2020, announced on 14 March 2020 the suspension during the state of alarm of scheduled court  actions and procedural terms, with the exception of, inter alia and in the labour jurisdiction, the proceedings declared urgent by law, we can presume that any possible disputes arising from our beloved measure would continue forward at all costs.

What about the approach to this measure? This aspect is not as rich in detail; the legislators did not spend as much time here. It is urged that the company and the worker attempt to reach an agreement, but in contrast to the precept that gave rise to this measure (Article 34.8 of the Workers’ Statute), there is no reference to said precept nor is any procedure established in this regard. Therefore, by analogy, it is only possible to follow the procedure established for such purpose in said article.

It is precisely said procedure which contains a truly important aspect to which, in fact, Rulings of Labour Court of Madrid no. 42 (number 268/2019) and no. 23 (number 494/2019) make a clear mention and warning: negotiation. This is a weak spot for many companies and where, perhaps, fears become reality on the one hand and dreams come true on the other.

Indeed, the absence of negotiation could lead, if faced with a potential lawsuit, to whatever is alleged by the company therein hardly being taken into account at all. In turn, the reasonability and proportionality of the application by the worker may directly be evaluated. This would be precisely due to that lack of prior negotiation, which is what allows our courts to assess the causes alleged therein by the company for the total or partial denial of the adaptation of the workday. Holding said negotiation is as important as what is alleged therein and subsequently reflected in the express and reasoned answer that must follow, since in a court case it would be impossible for the company to allege any other causes than those previously alleged in the negotiation and reflected in its reasoned reply.

This is a sort of “warning” sent out loud and clear by the courts of justice which, undoubtedly, companies should keep mind even during a pandemic. You know the saying: he who warns is not a traitor.