The Supreme Court responds:If the company does not begin the negotiation process provided for in article 34.8 of the Workers' Statute, HE violates the right of the worker, and the courts can directly recognize the requested adaptation, unless this is unjustified or disproportionate.

The ruling resolves a cassation appeal for the unification of doctrine against sentence no. conciliation (adaptation of working hours) and compensation for damages.

The worker, chief surveyor With seniority since January 2021, on March 14, 2023, he requested the adaptation of his day to reconcile his family life, proposing to work from 7:00 a.m. to 3:00 p.m. (protected by art. 34.8 ET). 

The company denied the request on April 13, 2023 without opening the formal negotiation process.

The employee, father of two daughters born In 2018 and 2021, he worked full-time (8:00 a.m. to 5:00 p.m. Monday to Thursday; 8:00 a.m. to 2:00 p.m. Friday) and He was the only chief surveyor. I coordinated a team that operated in shifts at a mine and performed functions that included daily verifications, coordination meetings and monthly planning, some in the afternoons. When he was on vacation, the company did not hire anyone to fill his position. Nor did he do so on one occasion when he was on medical leave for three months.

On the other hand,the worker's wife had refused a job as a lawyer due to time incompatibility with caring for her daughters, since the hours offered were from 9:30 a.m. to 2:00 p.m. and from 4:00 p.m. to 7:30 p.m.

The Social Court No. 2 of Oviedo dismissed the claim and acquitted the company.

The worker appealed and The TSJ of Asturias revoked the lower court ruling, recognizing the right to adapt his working day. from 7:00 a.m. to 3:00 p.m., Monday to Friday.

The company, not satisfied with this decision, filed an appeal for the unification of doctrine  raising three reasons. The Supreme Court  only admitted to processing the reason relating to the absence of negotiation, alleging that this did not imply the obligation to grant the adaptation.

The question to be resolved  was to determine what consequences it has for the company of not opening the negotiation process provided for in article 34.8 ET.

He Supreme Court remember that he right to balance personal, family and work life is directly linked to the  articles 14 and 39 of the Spanish Constitution(equality and protection of the family).

Therefore,The negotiating process cannot be considered a mere formalism, but an essential guarantee of the right to conciliation. 

Negotiating involves a real and good faith negotiation between company and worker to reach an agreement in which both personal circumstances and the organizational needs of the company are valued . The lack of this negotiation constitutes a violation of the right to conciliation. The Court clarifies that: “submitted the request for adaptation of the working day by a worker, the company is obliged, by law, to open a negotiation period in the terms contemplated in art. 34.8 ET. The rule does not authorize you to give a direct response with a negative decision, even if it is motivated, or even with alternative proposals, since it would be evading the obligatory opening of the negotiating period that the rule establishes as a dynamic element integral to the right to adapt the working day that the worker who requests it has, aimed at guaranteeing its viability and, where appropriate, its effectiveness. 

In the sentence the evolution of article 34.8 ET is analyzed, from its origin in Organic Law 3/2007 to its current configuration (after RDL 6/2019 and RDL 5/2023), highlighting how the legislator has been reinforcing the active role of the worker as the holder of a subjective right to request the adaptation of working hours, introducing greater guarantees and shorter negotiation periods, also shortening the negotiation periods from 30 days to the current 15 days.

Failed:

The appeal is dismissed for the unification of doctrine filed by the legal representation of the company and the sentence handed down by the Social Chamber of the Superior Court of Justice of Asturias is confirmed and declared final. In addition, costs are imposed on the appellant company in the amount of 1,500 euros.