The systematic denial of the requests of workers to reduce the day to guard their children, claiming the company that the service is for the attention of the emergency telephone, implies an indirect discrimination on grounds of sex.
This is the main conclusion reached by the Barcelona Social 26 judge when resolving the conflict promoted by ten workers who requested a reduction in working hours due to legal guardianship from the Ferrovial company, which was awarded the telephone service of the Medical Emergencies System. (SEM) of Catalonia. The sentence can be consulted at this link.
The court confirms the sanction of 25,000 euros imposed by the Labor Inspectorate to the company for a very serious offense motivated by unilateral decisions that generate discrimination.
The judge has rejected the company’s allegations about the need for the service it provides – emergency telephone assistance 061 – which has a special complexity due to its continuous and uninterrupted dedication 24 hours a day and 365 days a year, having to meet certain criteria minimum quality standards imposed by the Generalitat that make it difficult to change shifts and / or hours.
The lawyer for the Generalitat of Catalonia considers that the company had systematically denied requests for reduced working hours on the generic pretext of organizational difficulties. This attitude caused difficulties in the workers’ family and work conciliation, forcing the employees to give up their claims or face the costs of a judicial process.
Despite having an Equality Plan, the company systematically denied requests for reduced working hours due to legal guardians on the pretext of organizational difficulties, forcing the presentation of lawsuits. Agreements were only reached with the workers in court and before the trial, which for the Labor Inspectorate implies indirect discrimination on the basis of gender.
Equality and Conciliation Plan
The judge highlights in his ruling that it is useless to have an Equality Plan with ambitious objectives in this regard if in practice the company hinders the effective reconciliation of family and work life. Equally irrelevant is the existence of a specific Conciliation Plan that is not even applicable to the operational personnel of the service.
Following the doctrine of the Constitutional Court, the judge considers that denying, obstructing or excessive rigor in the processing of conciliation requests by the company implies gender and indirect discrimination.
Gender because it hinders the traditional role of caregiver proper to the female gender, which has not yet been overcome. And indirectly because, regardless of whether the business criterion is applied in a generalized way to men and women, as they are rights exercised mainly by female workers, the “adverse practical repercussion of the entrepreneurial procedure has a greater effect on the female group”.
In addition, the attitude of the company is reprehensible, forcing workers to go to court to reach an agreement in most cases.
Legal costs and delays
The costs of a legal process are disproportionately passed on to the parties. For the company, it is one more trial for its legal team and in which, in addition, it practically has the guarantee that it will not be sentenced to costs. However, for the worker it is a much more relevant economic adventure, having to provide professional legal defense, the cost of which cannot be recovered from the company, even if the lawsuit is won.
In addition, the judge confirms the clamor of the citizens for the judicial delays that are taken advantage of by the company. The time elapsed until the final resolution of the dispute, excessively long due to the work overload of the Barcelona Social Courts, plays in favor of the company and against the worker, who must continue developing their previous work schedule at despite being incompatible with their family circumstances.
Finally, the head of the court applies the aggravating circumstance related to the number of affected workers to support the sanction of the Labor Inspection. Although there are only 10 workers out of a workforce of 240, the reality is that the conciliation denial was applied to all those who tried to reduce their working hours due to conciliation.