It is not an absolute and automatic right

The appeal No. 994/2023 filed by the plaintiff against the ruling of the Social Court No. 4 of Madrid, dated September 4, 2023, orders No. 478/2023, is resolved.

The worker provided services such as multipurpose cashier with a weekly shift of 30 hours and has a daughter born in 2019,enrolled in a course during 9:00 a 14:00 hours. The minor's father works during Monday to Sunday, from 8:30 a.m. to 2:30 p.m. and from 3:30 p.m. to 5:30 p.m.. He 13.3.2023 requested in writing day adaptation, proposing two options:

1. Monday to Friday from 9:30 a.m. to 3:30 p.m.
2. Monday to Saturday from 10:00 a.m. to 3:00 p.m.

He 23.3.2023 the company responded by accepting the requested time specification of Monday to Saturday from 10:00 to 15:00, with effects from the 27.3.2023.

He 4.4.2023, the worker requested a new time specification Monday to Friday from 9:00 a.m. to 3:00 p.m., without receiving any response from the company.

The judge of instance dismissed the demand filed acquitting the defendant arguing that;(…) there must be a need that justifies the requested adaptation and in this case there is no such need. And it does not exist because on March 23, 2023 the company granted a working day adaptation in the second of the two options (...).

Against said ruling,The worker's legal representation filed an appeal. He alleged, on the one hand, that the company did not respond to the request to specify the working day requested by the worker nor did it open none negotiation period with her. On the other hand, he argued infringement of the article 34.8 of the Workers' Statute, as well as articles 45 sections 1, 2 and 47 of Organic Law 3/2007, of March 22, for effective equality between women and men in employment and occupation, and of Royal Decree-Law 6/2019, of March 1, of urgent measures to guarantee equal treatment and opportunities between women and men, in relation to articles 14.39 and 9.2 of the Spanish Constitution. The company challenged the appeal, claiming that there was no reason to request another change after the first request was accepted, which is why it did not respond.

The issue to be resolved consisted of determining If the company's decision not to respond to the plaintiff's request, dated April 4, 2023, was according to law, especially considering that the company had responded to a previous request for the same. Furthermore, it had to be decided whether the lack of response had violated the right not to be discriminated against on the basis of sex(articles 10, 14 and 39 of the Spanish Constitution) and, consequently, whether the worker deserved to be compensated for damages.

The TSJ of Madrid, argues that the right to request an adaptation of the working day must be exercised when the worker requires adjustments to his or her family care needs, such as modifying schedules, changing shifts exclusively to the morning, applying flexible entry and exit times from work or even changing to a continuous shift if it was not previously available. And he points out that this right “It is not an absolute and automatic right.” Furthermore, the court considers that the company justified its tacit decision of not proceeding to negotiate or attend to the new time proposal, highlighting that barely a week after granting the adaptation, the new request is not reasonable or proportionate, since neither the school schedules of his daughter nor the father's work schedule have changed. It also makes no sense to propose two alternatives that would be detrimental to its own interests or to demand a third option that would force the company to be in a permanent state of organization.

Finally, the room NOfind signs of violation of the fundamental right to non-discrimination based on sex, as there is no evidence to support it. According to the Court,NOT every business decision that denies scheduling requirements necessarily implies discrimination based on sex.. For all this,the appeal is dismissed.