We are aware of the fact, and therefore act accordingly,there are certain jobs that, due to their particular responsibility, are more demanding and require a higher commitment from the worker to be able to cover the needs required for such post. We are referring to expansion managers, heads of operations, international development managers etc. who, in most cases, require this level of special dedication due to the time they must spend travelling, (in many cases abroad), attending meetings and demands that, due to the kind of post, make it difficult for such post to be compatible with any kind of measure for a work-life balance that could be included in collective bargaining agreements or Article 37.6 the Spanish Labour Relations Act.

 

All this is not because the worker is not entitled to request and be granted such measures, (which all workers benefit from), but because the very nature of their post can make it incompatible to apply them. We can consider a worker who requests shorter working hours for legal guardianship; however the kind of job  requires that he/she opens new work centres abroad and this needs continual travel to other countries. It is obvious this is incompatible with shorter hours or the worker requiring a specific timetable, which raises the question about adaptation of the worker’s job and the feasibility of continuing his/her duties with the same working conditions.

 

Right, compatibility and impact


Due to this situation, in these cases mentioned above, even being aware of these circumstances, the worker requests to exercise this right that the regulations also automatically grant to him/her, such as shorter working hours, hence a measure the company could resort to is a kind of functional relocation within the company, enabling a new job to be assigned to the worker with the same professional category, without this implying a lower salary or a change in his/her professional level.

 

In this respect, since the company could consider it is absolutely impossible and unfeasible to apply shorter working hours to  theworker’s current job, it could propose the possibility of functional relocation to a job that is within the same professional category, without this implying a lower salary. This business decision has been supported by the Spanish courts, as can be seen by the judgement of the Constitutional Court 153/2021 of 13 September 2021, which ruled as follows:

 

“It is considered that, in accordance with the defendant company, the measure consisting of temporarily assigning other services to the worker did not cause the worker any harm whatsoever. She did not undergo any “reduction in her professional category”, because she continued performing the same duties with her same professional nursing category and in the same group; she did not lose her place in the ICU due to her pregnancy or her place was kept in the paediatric ICU, which she returned to when she began working full time again and she also continued taking her training courses. Under these circumstances, as stated by the challenged court decisions, it cannot be considered that she was caused any “professional downgrading” or any “hindrance in her professional career”, as alleged by the appellant.”


The Constitutional Court ruled that, providing the decision is based on the company’s justified organisational needs and does not imply any reduction being caused in the professional category or duties performed, it cannot be considered that any professional harm has been caused and hence the business management can adapt such job to the other one that, always within the same professional category, could make this measure for a work-life balance possible as requested by the worker.

 

Impact on Receiving Fringe

 

Along with functional relocation, the issue is also raised about receiving the fringe benefits that the worker had been granted due to his/her duties of responsibility, above all regarding the bonus payable for such job. Case law has been clear when determining that the fringe benefits linked to the specific duties of the job cannot be vested and hence they cannot be applicable to cases in which the worker no longer performs the duties for which the fringe benefits were granted.

 

In this respect, the judgement of the High Court of Justice of La Rioja 237 of 3 Novembre 2005, ruled the following:

 

“The fringe benefits granted for the job are no longer applicable in cases of functional relocation, unless there is a legal provision or agreement otherwise that guarantees they will be received, which is something that Spanish case law has repeatedly upheld, (for example the judgements of the Supreme Court of 27-7-93, 20-12-94, 5-2-96 and 7-7-99).”

 

Therefore, a worker’s functional relocation that has been accepted as a measure for a work-life balance can imply that the bonus payable for the worker’s previous job is no longer applicable, because it was subject to performing specific duties that resulted in such fringe benefits being payable. However, this measure cannot be considered a substantial change in the employee’s working conditions, since it does not affect his/her basic salary or other fundamental terms and conditions of his/her contract.

 

 

Autor:  Francisco de Borja Ortas , socio de Derecho Laboral en RSM