Recent rulings consider that minor adjustments to employees’ working hours, which previously could be varied unilaterally by the company, must now pass the control of substantial modifications of working hours in case they affect the right to reconciliation of work and family life.
The ruling handed down by the High Court of Justice of the Canary Islands in Las Palmas de Gran Canaria on 26 May 2022, for which Judge Gloria Poyatos Matas was the rapporteur, considers that a minor modification of working hours can now be considered a substantial modification of working conditions, rather than an adjustment of working hours, as has been the case to date.
The change with respect to the case law existing to date lies in the approach that the ruling gives to the specific case, from the perspective of reconciling work and family life.
Thus, although the modification in question involves only the entry thirteen minutes before and thirteen minutes after the usual working hours, the SCJ points out that what is relevant to determine whether it is (i) a substantial modification of working conditions or (ii) an adjustment of the working day to the current legislation, is to assess it from the point of view of the right to reconciliation of work and family life.
What do we mean by substantial modification?
It should be remembered that a simple adjustment of working hours to a new situation does not require a pre-established legal procedure, and is considered to be one of the company’s powers of organisation or “ius variandi”.
On the other hand, the substantial modification of working conditions requires an objective cause (economic, productive, organisational or technical) to justify it, and a written notice containing said justification 15 days before the measure takes effect, even giving the right to compensation (20 days’ salary per year with a limit of 9 monthly payments), if said modification causes damage to the worker.
What is relevant, then, is the impact that the specific change in working hours will have on the worker’sright to work and family reconciliation, since nowadays working hours are not something secondary, trivial or “a consequence derived from the working day”, and in such a case, the change goes beyond a mere adjustment or adjustment of the working day. In the case analysed by the Supreme Court of the Canary Islands, the 13-minute modification affects the way in which the Christmas and Easter working days are made up, which, after the modification, must be made up, affecting the worker’s start and finish times in time slots that are sensitive to family reconciliation, such as the start time, which is brought forward from 8:00 a.m. (previously) to 7:47 a.m. (now 7:00 p.m.). (before) to 7:47 a.m. (now), and also in the departure time, which goes from 3:00 p.m. (before) to 3:13 p.m. (now).
This implies that we are dealing with a real substantial modification of working conditions that goes beyond the exercise of the employer’s “ius variandi”, to place it in a position that deserves reinforced protection, which required following the mandatory procedure for substantial modification of conditions.
The judgment in question also cites case law from the Supreme Court of the Basque Country (16/07/2019), in which a similar case was resolved, in which it was questioned whether the time variation applied(extending the midday break from 90 minutes to two hours, and delaying departure from 18.30 to 19.00) fell within the concept of “substantial” for the purposes of art. 41 ET.
In its legal reasoning it states: “the timetable is a working condition very close to the working day, since it specifies the exact time each day that the service is to be provided and is a very sensitive condition for the worker, since it can affect the performance of other activities committed outside these hours, affecting the right to the reconciliation of work and personal life (…) Delaying the departure of workers by half an hour from 18.30 to 19.00 is not a substantial delay.30 hours to 19.00 hours is not trivial but is an important change (…) the extension is that of the evening (from 18.30 to 19.00 hours), which is very sensitive for the reconciliation of work and family life of workers, who may be committed to other duties of greater or lesser significance, such as caring for minor children who have finished school hours earlier, or shopping in establishments with business hours about to close, etc.”
In anticipation of the criticism, the Canary Islands Judgment also cites the previous Supreme Court Judgment (of 10/10/2004, Rec2005 Rec. 183/2004), which did not consider the half-hour delay in the timetable for entering and leaving work to be substantial.
However, the ruling recalls that the Supreme Court’s decision, apart from being issued 14 years ago, and before the enactment of the Law for the effective equality of women and men (LO 3/2007), did not contain any reference to the impact that such a change in working hours could have on the exercise of the right to work and family reconciliation (art. 39 EC) of the workers affected.
The resolution recalls that the greater impact of women on the right to work-life balance must be taken into account in order to determine whether we are dealing with an adjustment of working hours or a real modification of substantial working conditions, “having to integrate in its interpretation the experiences, concerns and aspirations of women, by mandate of art. 4 of the Law on Equality, in relation to the Spanish Constitution, in the interpretation of fundamental rights, in accordance with the international treaties and agreements ratified by Spain…”
The publication of the ruling comes shortly before the entry into force (14/07/2022) of Law 15/2022, of 12 July, comprehensive for equal treatment and non-discrimination, which incorporates even more clearly a series of actions to be integrated both by the State and in companies, to promote equality and eradicate the differences that may cause any hint of discrimination in the workplace (among others), as well as the consequences and possible courses of action for workers, that is: action for cessation of discrimination, claim for damages including moral damages, etc.
Undoubtedly, the judge rapporteur has once again become a pioneer in interpreting and integrating into the body of case law the new situations arising from the application of the different regulations and agreements that attempt to alleviate the inequalities that still exist today between women and men workers.