The company was sentenced to adapt the worker's working hours and pay compensation for violating her fundamental rights.

The appeal number 499/24 filed by the legal representation of Ms. Carlota against the ruling of the Social Court No. 12 of Madrid (orders No. 637/2023) issued on February 26, 2024 is resolved.

Ms. Carlota, a lawyer in the company since 2001, requested to return in April 2023 after taking a leave of absence to care for her daughter, born with a congenital malformation.  In his request, he also requested a reduction in working hours to 20 hours per week, with hours from Monday to Thursday from 9:30 a.m. to 1:30 p.m., in teleworking mode.

The defendant company accepted the reduction in hours, but offered him three days of teleworking and two days of in-person work, despite the fact that, at InfoJobs, they offered a senior lawyer position with 100% teleworking if the position was outside of Madrid and only one day of teleworking if the position was in Madrid.

The Social Court No. 12 of Madrid partially upheld the claim, recognizing the right of the worker to reduce working hours and to telework one day a week. There was no violation of fundamental rights, justifying that the business refusal responded to organizational reasons.

The worker appealed, arguing that the sentence was incongruent and that articles 14 (equality and non-discrimination based on sex), 29 (protection of children) and 39 (protection of the family) of the Spanish Constitution were violated.

The TSJ of Madrid recalled the doctrine of the Supreme Court in which a series of key criteria are established:

• The denial of an adaptation of working hours or working conditions due to legal custody does not imply, in itself, discrimination based on sex.
• For there to be a violation of the right to equality, there must be clear indications that the business refusal ignored or infringed this right.
• The lack of business justification does not automatically imply a reversal of the burden of proof, unless there is strong evidence of discrimination.

The jurisprudential doctrine has established that business refusals regarding conciliation, especially in the case of working women with family responsibilities, can constitute indirect discrimination.. This form of discrimination does not require proof of intention on the part of the employer, but it is sufficient to demonstrate that the business decision places the worker at an objective disadvantage due to her status as a woman and mother.

The Supreme Court has reiterated that, in cases of possible discrimination based on sex, it is up to the employer to prove the existence of objective reasons that justify business decisions that affect the reconciliation of work and family life..

In this case, it was proven that the company had granted 100% teleworking to other employees in similar situations, which demonstrated unequal treatment. Furthermore, the worker confirmed that the company's refusal meant real harm to her due to her status as a mother with caring responsibilities, without the company providing valid or objective justification to justify the denial of teleworking every day of the week.

After evaluating the circumstances of the case,The TSJ of Madrid concluded that the company's refusal to grant full teleworking constituted indirect discrimination based on sex.. The company put the worker in an objectively disadvantaged position due to her status as a mother and the need to care for her daughter with medical needs. For all these reasons, the Court declared that The worker had the right to work remotely throughout the day, five days a week, and ordered the company to compensate her for the moral damages caused., setting the amount of compensation at 7,501 euros.