A court in Barcelona has recognized the right to 100% telework to an employee who must take care of his father and who was forced by the company to physically join the workplace, located in the Catalan capital, despite living in Asturias. In a ruling, the Social Court number 12 of Barcelona has upheld the claim for family conciliation presented by this worker, through the Samos Legal office, since he had to take care of his father with serious health problems, granting him the right to work remotely for 100% of your workday.
As a result of the confinement decreed during the covid pandemic, this employee went to his place of origin in Asturias, from where he teleworked and took care of his father. Afterwards, the company wanted the worker to move to Barcelona to physically join his position, a call center in which teleworking dynamics are common.
However, this employee asked his company to be able to telework under article 34.8 of the Workers' Statute in order to care for his father who suffers from serious medical problems, a request that was denied.
In its ruling, the Social Court number 12 of Barcelona argues that, in this type of situation, the company must open a negotiating process with the employee, in accordance with the aforementioned article of the Workers' Statute, which contemplates both the "needs of the worker and the organizational needs of the company", as well as examining the "material viability" of the requested measure or exploring, if not, "different intermediate alternatives".
According to the new wording of the aforementioned article, said negotiation period must last a maximum of 15 days, and, at the end of this period, the company must inform the worker of its decision, which may be the acceptance or denial of the request, or the proposal of an alternative. However, in this specific case, 15 days after the worker's request, the company informed him of its rejection without having opened a negotiation process.
The judge of the 12th Social Court of Barcelona alleges, in this sense, that "there was no effective" debate between the parties during the period in which the negotiation should have been carried out, since the company limited itself to requesting generically to this worker to provide the documentation he deems appropriate to support his request.
For the judge, not having opened a negotiation process with your worker constitutes a business breach, since dismissing the claim would mean "benefiting the person who failed to comply with that legal obligation." Furthermore, the judge sees proven the situation of dependency and need of the worker's father and highlights the company's lack of empathy with the complications inherent in these family situations.
