Requesting telework for family reconciliation

On 28 March, the Spanish Parliament approved Royal Decree-Law 5/2023, more popularly known as the "law on families and teleworking". It came into force just three weeks after its publication in the Official State Gazette and its envisaged measures took effect as of 30 June 2023. Its aim was to complete the transposition of EU Directive 2019/1158.

Undoubtedly, one of the measures envisaged that has attracted most attention is the possibility of requesting telework for childcare for a period of up to 12 years after becoming parents. This right was already included in Article 34.8 of the Workers' Statute. But which workers have the right to request it? This question and many others will be answered here.

Who can apply for telework for childcare?

In principle, all workers, regardless of whether they are men or women, until their children reach 12 years of age. However, the law includes other assumptions that should be mentioned:

• Fathers and mothers who have children over 12 years of age with special needs.
• People who have dependents up to the second degree of consanguinity.
• Workers caring for dependent persons who cannot look after themselves and who live in the same home.
• The spouse or common-law partner of a worker with a child under 12 years of age.

However, in all cases, it is compulsory for the worker to justify the circumstances that lead him/her to request teleworking for family reconciliation. However, the law clearly specifies that the adaptation of the working day to this circumstance must be reasonable and coincide with the needs of the company.

What does this mean? Obviously, not all jobs are compatible with teleworking. This would be the case, for example, for a bricklayer, a car mechanic or a plumber. In such cases, the possibility of teleworking does not exist and the employee will have to make use of other rights, such as the right to reduce working hours.

The right to request telework for childcare can be exercised at any time. In other words, it is not obligatory to request it at the moment when the child is born and the maternity or paternity leave is exhausted. For example, if the rule came into force when the child was 6 years old, the employee can take it for the following 6 years.

The obligations of companies regarding requests for teleworking for family reconciliation

According to Royal Decree-Law 5/2023, companies cannot ignore a request for family reconciliation up to the age of 12 made by one of their employees. In fact, it gives them a maximum period of 15 calendar days to study the request and provide them with a response. If they fail to do so, the request is deemed to have been accepted.

But what happens if the company gives an answer contrary to the request for teleworking for family reconciliation? In this case, the report must contain an alternative proposal that meets the employee's needs for work-life balance or, failing that, it must state its refusal. In both cases, the reply must be fully reasoned with objective arguments in support of the decision.

Obviously, the employee can go to court if he/she considers that the company's decision is not fair and does not comply with the provisions of the family law. To do so, it is always advisable to seek the services of a labour lawyer.

Other important aspects regarding the law on families and teleworking

First of all, we have to say that the worker will cease to enjoy the right to telework for family reconciliation once the causes that motivated his or her request cease to exist. That is to say, that their children reach the age of 12, that the agreed period ends or that they decide to return to the office. For its part, the company may only refuse to allow the employee to return to the face-to-face mode if there are objective reasons to justify it.

Can the worker be dismissed when requesting teleworking for family reconciliation?

There is no doubt that this is one of the most frequently asked questions by workers. It is something normal, as it has generated some controversy in the social courts throughout Spain. However, it is worth remembering that the law on families and telework not only refers to Article 34.8 of the Workers' Statute, but also modifies Articles 53.4 and 55.5 of the law in order to fully adapt to EU directives.

This has resulted in the infringement of the right to request teleworking for childcare being considered as a cause for nullity. Therefore, the decision taken by an employer to dismiss a worker who is enjoying this leave will be null and void in all cases and, therefore, the employer will have to restore the employee's position within the organisation's organisation chart and, even, pay him/her the wages for the time corresponding to the duration of the process in court. This is provided that the dismissal cannot be justified.

Before concluding, we would like to remind you that the request for teleworking for family reconciliation and its acceptance by the company does not entail a modification of the working day. This is mainly due to the fact that this right is different (and compatible) with the right to reduce and adapt working hours to care for children. This should always be taken into account.

If you have any queries related to this subject, you can contact us in person or receive assistance through our online lawyers.