The Court rejects a worker's appeal, considering that she did not justify a real and proportional need, and that the company offered reasonable alternatives, proving organizational harm.

The appeal filed by the plaintiff against the Judgment of the Social Court No. 10 of Las Palmas de Gran Canaria, dated September 17, 2024 (orders 789/2024) is resolved. Procedure on conciliation rights.

The worker, a stocker in a supermarket, provided services in shifts from Monday to Sunday from 4:30 to 12:50, with leave on Fridays and Sundays.. In June 2024, she requested a change of schedule to work from Monday to Friday, from 7:00 a.m. to 3:00 p.m., to take care of her two children, ages 8 and 2. The company responded by offering alternatives that included morning hours, but having to work some weekends and four afternoons a month.

The father of the minors works from Monday to Friday from 5:30 a.m. to 1:30 p.m. (noon).  

The court considered one of the proposals offered by the company adequate(08:00 to 16:20) with four afternoons a month and weekly breaks of 48 hours, understanding that it allowed a reasonable conciliation. He appreciated that the father's schedule was compatible, the mother could take the children to school and the father would be in charge of picking them up and caring for them in the afternoon. Furthermore, he considered that the worker's request would negatively affect the organization of work, especially the afternoon shifts, and that the need to take weekends off was not justified.

The worker appealed, alleging the violation of her right to conciliation.(art. 34.8 of the Workers' Statute) and that the company had not sufficiently demonstrated that its request was unviable. He argued that the father's situation should not be decisive and that his proposal responded to a real need.

The TSJ of the Canary Islands analyzed the current art. ET 34.8 and reasoned that this article establishes a new right of conciliation, but with limitations. The right to adapt the day is not absolute and is conditional. The worker has the right to request conciliation measures, but these must be reasonable and proportionate, without seriously harming the business organization, taking into account the rights of third parties who may be affected. This recognizes a balance between individual rights and business freedom subject to criteria of reasonableness and proportionality.

Family conciliation is a right that must be agreed upon with the company; it cannot be imposed unilaterally.. The worker has the right to begin a good faith negotiation process with the company, in order to reach a reasonable agreement. The request must be justified and must not be abusive. On the other hand, the company is not obliged to accept applications for organizational or productive reasons.

Besides,The worker is obliged to provide the necessary information about his or her personal and family situation. In order to evaluate the request, it is necessary to take into account the situation of the other parent given that there is a principle of co-responsibility between both.. This requirement is based on both jurisprudence of the Constitutional Court and European regulations, which establish the balanced participation of both parents in the care of the children. Therefore, for a correct assessment, the situation of both cannot be ignored.

In this case,The Court examines two aspects: the real need of the worker and the organizational impossibility on the part of the company.. He considered that the worker's need was not sufficiently proven, while what affected the organization of the company was.  Also, he considered that the proposed schedule offered (with entry at 8:00) facilitated conciliation, since it allowed the worker to take the children to school and, with the collaboration of the father, cover the care of the minors. Furthermore, he assessed that the few afternoons a month that he had to work were compatible with this conciliation. Since the father was available on weekends, the need for the mother to take those days off was not justified.

The company confirmed that accepting the request would negatively affect the organization of shifts, especially afternoon shifts, increasing the burden on other workers and generating a significant imbalance. The Court considered this justification valid.

The final decision was based on the fact that the company had offered an adequate alternative and the worker's request was not sufficiently motivated. Since the organizational difficulty has been proven,The initial sentence was confirmed and the worker's appeal was dismissed.