Reduction of working hours to care for a child or family member

Reduced working hours to care for children or other dependent family members is a right that all workers have. The purpose? To make it easier to reconcile their personal and professional lives. However, it is also one of the issues that generates most doubts among them. For this reason, here we are going to explain when it can be taken, how to apply for it and many other related questions of interest.

When can I ask for reduced working hours for childcare?

In the Workers' Statute, the reduction of working hours is regulated in Article 37. Specifically, it indicates that all employees of a company may enjoy this right if:

• They have dependent children under 12 years of age. This can be requested until the child reaches that age, with the exception of if the worker does not have custody of the child if he/she is separated or divorced.
• They have children with a physical, sensory or physical disability that prevents them from taking care of themselves. There is no age limit in this case.
• They have children affected by cancer or any other type of serious illness. In this case, the age limit is extended to 23 years.
• They are caring for a relative up to the second degree of affinity or consanguinity. They must be unable to look after themselves and must not be working.

The Workers' Statute only provides for one limitation when requesting a reduction in the working day to care for children. We refer to the case where two workers from the same company request this right to care for the same child or family member.

How to apply for reduced working hours for childcare?

As is often the case in the field of employment, it is very important to take care of the formalities of the procedure. It is therefore of vital importance that the employee communicates his or her decision to take advantage of this right to his or her employer at least 15 days in advance.

The Workers' Statute does not clarify how this should be done, but many collective agreements do. Some even include in their annexes models for requesting reduced working hours to care for family members and children. In any case, if the worker decides to communicate this fact orally, he/she must make sure that he/she has a witness.

Workers are also obliged to give notice to their employer when there are 15 calendar days left before the end of their right to the reduced working day.

Can the employer refuse to reduce working hours?

The company cannot refuse to grant the employee the reduction of working hours for childcare, except in the case described by the Workers' Statute above. That is, because two employees request this right to care for the same family member or child. In that case, it would have the possibility to refuse it provided that there are productive or organisational reasons that justify it.

In practice, however, this is rarely the case. In the event of a refusal, the worker can also file a lawsuit within 20 calendar days in the corresponding social court.

Another reason for refusing a reduction in working hours is if the company has evidence that the employee is requesting it on the basis of a situation of abuse of rights, bad faith or manifest breach of duty. For example, knowing that his or her absence will seriously affect production, seriously harm the survival of the business, or refuses to accept other alternatives that would allow him or her to reconcile his or her personal and professional life.

It should also be noted that the employer may not retaliate against an employee who requests the reduction. Due to the principle of indemnity, the dismissal will always be considered null and void while the employee is enjoying this right.

How does the reduction of working hours take place?

To resolve this question, we have to turn to Article 37.6 of the Workers' Statute, which states that "workers are entitled to a reduction of the daily working day of between one eighth (12.5%) and one half (50%). This shall entail a proportional reduction in their pay".

This has essentially two implications:

• The reduction of working hours must take place within the working hours of the employee at the time of the application. It does not matter what is specified in the contract.
• The reduction must be daily. That is to say, it must be applied every day. A worker may not accumulate them for the purpose of justified absence from work on one or more days of the week.

This last point is the most complex, as some collective agreements do provide for the possibility of the reduction to be cumulative rather than daily.

Moreover, as of 2019, workers can also take advantage of the right to reorganise their working day according to their needs. In other words, they do not need to reduce it, but only to modify it (for example, leaving the morning shift to switch to the afternoon shift).

Having said that, it is clear that the reduction of working hours for childcare is one of the most important rights that workers have when it comes to reconciling their family and working life. However, in the event of any refusal on the part of the company, it is best to seek the services of a family lawyer who can advise and, if necessary, take the case to court.