Court extends flexible working rights under the Spanish Constitution?
In a recent case involving a request for flexible working, the court found in favor of the employee by granting his request for a flexible starting time, relying on Article 39 of the Spanish Constitution which states: “public powers will assure the social, economic and judicial protection of the family.”
The employee worked rotating shifts as a chef in a kitchen in a center for the elderly. The morning shifts were from 0800 to 1500, and the afternoon/evening shifts were from 1500 to 2200. The employee had a baby and the nursery´s normal hours were from 0900 to 1600, however it was possible to leave children between 0800 and 0900. In the summer of 2015, the employee asked his employer if he could grant him the flexibility to start between 0800 and 0900 in the morning, in order that he could take his baby to nursery prior to starting work. The employer refused his request on the grounds that the employee was required in the kitchen by 0800, in order that breakfasts could be prepared for the vulnerably, elderly clients ahead of the ordinary serving time of 0830.
The Spanish Workers’ statute provides a right to request a reduction in working time in order to care for children under twelve, but the applicable provisions did not apply to this case because the employee was not requesting a reduction in working hours. The applicable collective bargaining agreement, in contrast, provides public sector employees with a right to either delay the start of their working day by an hour, or to leave an hour early if it is to care for children under 12.
This case is interesting in so far as the Judge found in favour of the employee, not because of the terms of the applicable collective bargaining agreement, but rather because of the aforementioned Article 39 in the Spanish Constitution. We will have to wait and see whether employees in the private sector will, in the future, invoke, similar lines of argument in cases such as these.