What happens if I change the schedule of my workday and I do not agree what happens if they change the schedule of my workday and I do not agree
Often, conflicts with the company arise following the alteration of the work shift assigned to an employee: someone who works regularly from 8 to 15 hours, suddenly, he covers the afternoon shift, from 15 to 23 hours, withoutthat nobody has asked for your opinion about it.It may be an organizational readjustment to improve the production of the company and, sometimes, it may simply be due to a form of punishment towards Discol employees (something that, normally, no company would officially recognize).In any case, is a schedule change without consensus?What happens if the worker does not agree?
"At first, we are facing a substantial modification of the working conditions collected in article 41 of the Statute of Workers," explains Luis San José Gras, a partner of the Agm Lawyers Labor Law area.In this sense, he adds that "if the company does not do it for proven economic, technical, organizational or production reasons, and with the notice of the worker of 15 days to date of its effectiveness, it will be in principle the measure made unjustifiably".That is, the norm only contemplates as legal these types of changes when the company can justify its need.
However, it is understood that every change of work shift that the company is done for the reasons above and, therefore, its justification a priori is not necessary.But what happens if the employee does not agree?How should it proceed?"If the worker is not in accordance with this change, he can challenge him within 20 business days to file the corresponding lawThe measure made by the unjustified or null company, "says San José.
In addition, the expert adds, "the worker to whom the measure causes damage, will have the right to terminate his contract and receive compensation of twenty days of salary per year of service by approsing for months the periods of less than one year and with a maximumnine months ", as specified in the law.That is, if an employee has been working on a company that has just changed direction and sees his work schedule because the new address intends to press him to march without paying compensation, he would have the right to collect those 20 days foryear, provided that the measure is challenged by justice.
The Covid and the 'Mecuida Plan'
At this point, is there any situation in which the employee can refuse a change of schedule without having to resort to justice?In the current sanitary emergency situation, yes.Specifically, "when there are exceptional provisions related to the necessary actions to avoid the transmission of COVID-19, being able to request and test by the worker the application of the 'Mecuida Plan' regulated in Artº 6 of the RDL 8/2020 of March 17,which will remain in force until January 31, 2021 ", as San José points out.
"It will be understood that there are exceptional circumstances and that the worker must accredit, when the presence of the working person is necessary to take regarding the spouse or de factFor reasons of age, disease or disability, you need personal and direct care as a direct consequence of COVID-19, "says the expert.Thus, if they accept the 'Mecuida Plan', they will have the right to access the adaptation of their day and/or the reduction of it.
"It is also understood that it is exceptional, when there are decisions taken by the government authorities related to COVID-19 that imply closures of educational centers or any other nature that will dispense care or attention to the person needy of them; or it is also exceptionalWhen the presence of the working person is required, when the person who so far had been in charge of the care or direct assistance of the spouse or familiar until the second degree of the working person who could not continue to do so for justified causes related to the COVID-19 ", adds.
Another of the points to be taken is that "the worker may vocate nullity the business decision to change the schedule if the mobile of said change were any of the causes of discrimination provided in the Constitution and in the law, or occur withviolation of fundamental rights and public freedoms of the worker, including, where appropriate, maternity, risk during pregnancy, risk during breastfeeding, diseases caused by pregnancy, pregnancy, childbirth or natural breastfeeding, or foster care or paternity and victims ofgender violence for the exercise of the rights of reduction or reorganization of their work time, "says San José.
"It can also be challenged by workers who have been reinstated to work at the end of the periods of maternity, adoption or fosterness or paternity, provided that more than 9 months had elapsed since the date of birth, adoption or foster care,"concludes.
