For the High Court, a change of shifts cannot be required rotating morning and afternoon to a single shift

The Supreme Court resolves an appeal for the unification of doctrine against the sentence handed down by the Social Chamber of the Superior Court of Justice of Murcia (Rec. Suplicación no. 1350/2018) formulated against the sentence of the Social Court 2 of Cartagena (orders no. 250/2018).

The workerShe provided services in a department store with a full-time indefinite contract and salesperson status. In 2014 had a girl, which is why requested leave for 4 years.He requested reinstatement to his position with a reduction in work hours to 4 hours a day on a fixed morning shift. Their usual working hours were alternating morning and afternoon shifts from 8 a.m. to 3 p.m. and from 3 p.m. to 10 p.m., this schedule coinciding with the store opening hours, which were always covered by three people in the morning and three in the afternoon, although in the afternoon shift there was a greater workload motivated by the cashier.

On April 17, 2018, the worker returned to her job, but on April 30, she began the medical leave process due to a common illness.

The company had 89 workers on staff at said work center, of which 15 were on reduced hours due to legal guardianship, two of them on the morning shift since they worked in the administration department and a third person also for being a victim of gender violence. The rest of the workers benefiting from reduced hours worked rotating morning and afternoon shifts. Two of those workers coincide in the same store as the worker.

The defendant responded to the claimsof the worker , manifesting what and agreed to the reduction of working hours due to legal guardianship but NOT to the specific time, since the plaintiff's usual working day was from Monday to Saturday and some Sundays with morning and afternoon shifts, indicating that the reduction in hours should be in each work shift and arguing difficulties for this, for organizational and productive reasons.

In instance, HE recognized the right to reduce working hours and specify hours, in addition to the obligation to pay compensation of €3,500 for damages caused.

The TSJ of Murcia dismissed the appeal filed by the companyconfirming the appealed sentence.

The company, in turn, formalized an appeal for unification of doctrineproviding as a contrast ruling the one issued by the Superior Court of Justice of Madrid dated January 15, 2018 (Rec. supplication 936/2017).

The issue to resolve in cassation was to determine whether or not the right to a reduction in working hours for legal guardianship of a minor entails the possibility that said reduction could be effective in a single shift, when the worker had been providing services in alternating morning and afternoon shifts.

The Supreme resolved the debate by applying doctrine, based on the following foundations:

First of all, analyzed the ruling of the Constitutional Court 26/2011 of April 11 in which, on the one hand, art. 14 of the Spanish Constitution is combined, alluding to (the right to non-discrimination based on sex); and on the other hand, art. 39 CE referring to the (social, economic and legal protection of the family), in addition to Organic Law 3/2007 of March 22 for the effective equality of women and men, aiming to promote the reconciliation of personal, professional and family life.

In second place, the Court highlighted; on the one hand, that in the act of trial The worker had given up her claim of violation of fundamental rights; and on the other , the company had alleged that the schedule requested by the plaintiff could cause organizational difficulties, therefore,The decision was justified as there was no abuse or fraud on their part.. For the resolution of the case “ there is no room for a trial”  on the allegations of the parties, the object of the debate being the interpretation of article 37 of the Workers' Statute (sections 6 and 7), according to which “Whoever for reasons of legal custody has a minor in their care (…) will have the right to a reduction in daily working hours, with a proportional decrease in salary, between at least one-eighth and a maximum of half of the duration of that” and also indicates that “the specification of hours and the determination of permits and reductions in working hours (…) will correspond to the worker within their ordinary working day"Ordinary working hours are understood to be those that the worker was actually carrying out on a regular basis. Consequently, the aforementioned precepts are those applicable to the resolution of the appeal since no other precept that is applicable by the worker has been alleged.

The TS states that there is no interpretive doubt, and The norm grants the worker the right to determine the conditions of the reduction of working hours, but with a single limitation “within her ordinary working day”, that is, without altering the shift work regime., as established in article 35.6 ET in line with the STS of June 18, 2008 appeal 1625/2007. Furthermore, it clarifies that in the case of changing the shift work system to a fixed shift day, this would not mean a reduction in working hours but rather an alteration of the ordinary working day. Nor did the worker exercise the adaptation of the working day provided for in article 34.8 of the ET as discussed in the STS of July 24, 2016, appeal 245/2016.

ThirdFrom another point of view, the Court held that There was no complaint about the violation of any fundamental right and the company had substantiated the reasons for the company's refusal to the request for a fixed morning shift schedule.. He presented arguments related to organization and productivity, pointing out that accepting the request would imply an imbalance with the staff, given that the greatest workload was concentrated on the afternoon shift due to the closure of the cash register. Additionally, there were two employees working alternating morning and afternoon shifts.

FinallyThe High Court stated that the jurisprudence of the Superior Court of Justice of the European Union of September 18, 2019 (Case C-366/18)considered that the community regulations did not violate Spanish regulations, pointing out that neither Directive 2010/18 nor the Framework Agreement on Parental Leave contain any provision that requires Member States to grant the applicant the right to work with a fixed schedule when their usual working hours are subject to rotating shifts. As reported by the Public Prosecutor's Office, all of the above leads to recognizing that the correct doctrine is found in the contrasting sentence.

Therefore,The Court considered an appeal for the unification of doctrine filed by the company; married and annulled the sentence of the TSJ of Murcia; overturned and revoked the ruling of the Social Court number 2 of Cartagena, and dismissed the claim for legal claims filed by the worker, ordering the return of the deposits made to appeal both phases, as well as the return of the deposit or release of the guarantee created to appeal.