Reduced working hours due to legal guardianship

Article 37.5 of the Workers' Statute defines exactly what the reduction of working hours for legal guardianship is, its conditions and requirements. This is a very important right for all those who are in charge of a child under 12 years of age or a person with some kind of disability. Therefore, in order to clear up any doubts you may have in this regard, we are going to analyse this issue in depth here.

What does the Workers' Statute say about the reduction of working hours for reasons of legal guardianship?

Specifically, article 37.5 of the Workers' Statute states that anyone caring for a person with a physical, sensory or mental disability who does not perform any paid work or for a child under 12 years of age for reasons of legal guardianship is entitled to a reduction in the working day. The same applies to those who have to directly care for a relative up to the second degree of affinity or consanguinity.
What is legal guardianship? It is a legal concept that grants custody of any of the subjects described above to another person who can guarantee the protection of their property and life in general. It is essential to be clear about this concept when applying for reduced working hours to care for children or family members.

Who can request a reduction in working hours for this reason?

Any worker who is registered in the General Social Security Scheme, that is to say, who works as an employee. In addition, it is a sine qua non requirement that they have legal guardianship or direct care of a child:

• Children under 12 years of age.
• Children under 18 years of age who are hospitalised due to cancer or any other serious illness.
• Persons with physical, mental or sensory disabilities.
• Relatives up to the second degree of affinity or consanguinity who cannot look after themselves.

Traditionally, this figure has been known as maternity leave, as it was mainly women who requested it. However, both the Workers' Statute and the collective agreements of the different sectors and companies provide that men can also request it.

What kind of reduction in working hours due to legal guardianship am I entitled to?

The limitations of legal guardianship and the corresponding reduction in working hours depend on the circumstances. In this sense, the Workers' Statute determines that, when the subject that gives the possibility to enjoy this right is a minor under 12 years of age or a family member with a disability, the employee is entitled to enjoy a reduction of the working day of between 1/8 (12.5%) and ½ (50%).
If the entitlement arises from the serious illness of a child under the age of 18, then the reduction in working time must be at least 50%. It should be remembered that collective agreements may extend this entitlement.
Obviously, the reduction in working time also entails a proportional reduction in the worker's salary. For its part, the worker's new proposed working hours must be within the worker's normal working hours. By this we mean that if, for example, an employee works from 8:00 a.m. to 5:00 p.m., after the reduction he/she cannot work from 7:00 p.m. to 11:00 p.m., for example.

How do I apply for reduced hours for legal childcare?

The procedure is quite simple. The first step is to inform a legal representative of the company or the human resources department of your intention to take advantage of the reduced working hours for this reason. You must do so at least 15 calendar days before the date from which you want to start benefiting from the right. Ideally, this should be done in writing by means of a burofax.
The document should state the start and end date of the reduction, as well as the number of hours by which you wish to reduce your working hours. It should also contain a proposed timetable and a date by which the company is summoned to respond to your request. It seems like a simple detail, but not taking care of it can lead to legal confusion.

Can the employer refuse to reduce the working day for legal guardianship?

It is not usual, but it can. Let us bear in mind that this is a right set out in the Workers' Statute, the requirements of which are very simple.
In the event that the company denies the worker the reduction of the working day, the worker must file a lawsuit in the corresponding Social Court within 20 calendar days of the notification of the denial. After that, it will be up to a judge to decide. But, until he does so, the worker cannot avail himself of this right. If he does so, he would be committing a disciplinary offence that could lead to dismissal without the right to compensation.
The only case in which a company can refuse to grant this right to the employee is the following. Let us imagine that, in an office, a husband and wife couple work together and that they both request a reduction in working hours for the purpose of caring for the same family member. In that case, the company has the right to grant it to only one of them, provided that, in doing so, it can cite justified organisational and operational reasons.
Another important aspect is that the company may disagree with the proposed timetable. Ideally, both parties should sit down, negotiate and reach a written agreement.

ERE and ERTE with reduced working hours for legal guardianship

Many workers ask themselves, when their company starts to experience financial problems, whether their employment situation can be affected by an ERTE or ERE even if they have the right to reduce their working hours for legal guardianship.
The answer is yes. The enjoyment of this right does not prevent the worker from being affected by either of these procedures. However, when calculating their unemployment benefit, the last working day they worked before applying for this reduction is taken as a reference. Therefore, that reduction time would not count and the worker would be able to receive 100% of the benefit.

In short, the reduction of working hours for legal guardianship is a right that all workers with children under 12 years of age or disabled family members in their care are entitled to. We hope that, after what we have just said, we have clarified all your doubts in this respect.

You can contact our employment lawyers for any queries related to this issue. We are available online anywhere in Spain.