You ask to change your schedule or telework so you can take care of your children and the company answers you with a «No.» dry. It's a regular scene, but that refusal may not be legal. The Supreme Court has been profiling a right —the call «day a la carte» Article 34.8 of the Staff Regulations— that many companies continue to manage as if it were a favor, and it is not. We explain to you what you can demand and where the limits are.
What is the right to adapt the day (art. 34.8 ET)
Article 34.8 of the Workers' Statute gives workers the right to request adjustments to the duration and distribution of your daythe management of working time and the form of delivery —including telework— to ensure the reconciliation of family and work life.
It is not necessarily a question of working less hours (that would be a reduction in working hours, with a reduction in wages), but of reorganize the work: change the time of entry and exit, set a specific shift or move to work remotely. When there are children, the application may be made until they turn 12.
The 2023 reform, which transposed the corresponding European conciliation legislation, reinforced this right and ordered the procedure that the company must follow.
The company is obliged to negotiate (not just to respond)
Here is the key that most companies fail. In the event of an application for adaptation, the company can't just say thateven with a motivated refusal. The law requires him to open a process of real and good faith negotiationwithin a given time, to try to reach an agreement by weighing your and your organizational needs.
The Supreme Court has established doctrine with a strong consequence: if the company fails to negotiate or makes it a mere formalism, the judge must grant the required adaptation in the terms raised by the working person, unless the request is manifestly unreasonable or disproportionate.
In other words: to skip the mandatory dialogue is against the company.
The burden of proof lies with the company
Another practical consequence of enormous weight: in case of a trial, It is not you who must prove that your request is viable.. It is the company that has to demonstrate, with objective, concrete and quantifiable data, the organizational or productive reasons that prevent it from granting it.
The simple invocation of «Service requirements» or generic production reasons Not enough.. And to offer clearly unviable alternatives or alternatives that do not resolve the need for conciliation does not meet the obligation to negotiate in good faith.
When the refusal may be discrimination on the basis of sex
This is the most delicate point, and it should be explained precisely so as not to generate false expectations. The Supreme has confirmed that the Unjustified refusal to a time adjustment by conciliation may constitute indirect discrimination on the basis of sex, because these types of measures mostly affect women.
When such a violation of a fundamental right is seen, the consequences go beyond the granting of adaptation: a damages.
Now, you have to be clear: no refusal is discriminatory. The courts have rejected discrimination when the company attests to real objective organizational cases and has granted similar adaptations in other cases. Discrimination is seen against negative unjustifiednot against those who respond to an objective and proven reason.
What can you do if you are denied adaptation
- Presents the written application, detailing the concrete adaptation you need and its justification.
- Demands the negotiating process: the company must open it, not respond with a «No.» direct.
- Save all documentation (dates, responses, proposals).
- If the answer is a refusal without real negotiation or objective cause, You can go to court. by the special and urgent procedure for such cases.
Frequently asked questions
Do I have the right to be always granted the adaptation I ask for? Not automatically. You have the right to request it and to have the company negotiate in good faith. If it does not negotiate or prove an objective reason, the judge usually grants the adaptation, unless the request is unreasonable or disproportionate.
Can I ask for telework to reconcile? Yeah. Article 34.8 expressly includes the provision of distance work as one of the adaptations that can be requested.
How old of my children can I ask for it? In general, until they turn 12. Special circumstances such as a serious disease may be required for older children.
Day adjustment by conciliation: what the Supreme saysCan you compensate me if I'm being denied wrong? If the unjustified refusal violates the right to conciliation and discrimination is seen, in addition to the granting of adaptation, compensation for damages may be granted.
