The right of a worker to modify her schedule in alternate weeks to care for her daughter under joint custody is recognized.

The Appeal Appeal 115/2024 filed by the worker against the ruling of the Social Court No. 11 of Bilbao, dated July 4, 2023, is resolved, procedure “Other individual labor rights”.

Mrs. Paulina, employee since 2012 of an international chain selling furniture and home accessories in Barakaldo,She is divorced and shares custody of her 12-year-old daughter on an alternating weekly basis.. Until her daughter was 12 years old, the company allowed her to adapt her schedule to facilitate family conciliation, alternating between the afternoon shift (5:30 p.m. to 10:30 p.m.) and the morning shift during custody weeks (11:00 a.m. to 4:30 p.m.).

On December 2, 2022, Ms. Paulina requested to maintain her adapted schedule, even though the girl had turned 12 years old.. The company rejected the request on December 20, 2022, justifying the decision by saying that there was a greater flow of customers in the afternoons and that the shift change represented an organizational impact. As of January 2023, Ms. Paulina began working a fixed afternoon shift.

In instance, the Court dismissed her claim, in which she requested to maintain the adapted schedule even though her daughter had turned 12 years old. He appealed, requesting that his right to accommodation be recognized, as well as compensation of €3,000 for discrimination, arguing that the company had not adequately justified the organizational reasons for denying his request.

The TSJ of the Basque Countryreviewed the appeal and recalled that art. 34.8 ET allows you to request schedule adaptations for the care of children over 12 years of age in justified circumstances. The Court considered that Ms. Paulina was forced to arrive home at 11:00 p.m., leaving her daughter unaware, not in a timely manner, and not just for a few hours. Furthermore, if the adaptation was not granted, she would be left without the possibility of reconciling her family life, since from Monday to Friday she would not be able to see her daughter (the girl is at school in the morning) and the minor still requires parental care (she is not 16 years old).  

Nor was it proven that the current organizational circumstances in the company prevented the adaptation, since the plaintiff had worked alternate shifts without problems until her daughter was 12 years old. Furthermore, no evidence was provided that other colleagues' shifts that would be modified by the adaptation had not been adjusted under similar circumstances previously..

The company justified its refusal to accept a greater flow of customers in the afternoon (56% compared to 44% in the morning), but did not demonstrate that this circumstance was different from what existed when Ms. Paulina was previously granted the adaptation of the day.

The TSJ partially upheld the appeal, allowing Ms. Paulina to do her morning shift (11:00-16:30) in alternate weeks when she has custody of her daughter. However, it rejected compensation, not finding sufficient evidence of prejudice due to discrimination.