The new regulation may increase the number of requests for working time adjustment due to the ‘shield’ against dismissal of those who request it.
Requesting telework under “amparo” expressly “shields” objective or automatic nullity against dismissal after the entry into force on 28 June.
It was already possible to request teleworking under protection, this is nothing new. However, the modification made to this article and, in particular, the express nullity in relation to dismissal, is new.
This is how the amendment of the Workers’ Statute is now worded
The negotiation period has been reduced from 30 to 15 days; however, the number of people who can request the measure has been increased with respect to the previous wording and it is expressly established that the request is understood to be granted if the company does not respond within the 15-day period.
Workers have the right to request adaptations in the length and distribution of the working day, in the organisation of working time and in the way they work, including the provision of their work remotely, in order to make their right to reconcile work and family life effective. Such adaptations shall be reasonable and proportionate in relation to the needs of the worker and the organisational or production needs of the company.
In the event that they have children, workers have the right to make such a request until their children reach the age of 12.
Likewise, those who have care needs with respect to children over 12 years of age, the spouse or common-law partner, relatives by blood up to the second degree of consanguinity of the worker, as well as other dependents when, in the latter case, they live in the same home, and who for reasons of age, accident or illness are unable to look after themselves, shall have this right, and must justify the circumstances on which their request is based.
The worker shall have the right to return to the situation prior to the adaptation at the end of the agreed or planned period or when the reasons for the request cease to exist.
In all other cases, if there is a change of circumstances that justifies it, the company may only deny the requested return when there are objective and justified reasons for doing so.
Express nullity of the dismissal
As the rule is drafted, it is essential to bear in mind that it deals with two situations of invalidity:
- Having applied for the adaptation request.
- To be enjoying the adaptation of the working day.
Conclusion
The modification of the article is for workers, in addition to expressly establishing the nullity of the dismissal, it is essential, on the one hand, that if companies are going to deny the request or accept it but only partially, that they justify the refusal adequately and accredit the reasons for the total or partial refusal and, on the other hand, that they scrupulously comply with the 15-day negotiation process.
If you have any doubts regarding this matter, please do not hesitate to contact us, by telephone to Isabel Torre Carazo or by e-mail to itc@btsasociados.com, we will be delighted to help you.