Father has to do the nightshift

In a rare piece of good news from the workplace, employees can now choose their working hours or shift depending on their family situation. In a recent ruling, the Constitutional Court sided with a worker from a special education home in Palencia whose request to be moved to the nightshift so he could take care of his two children during the day had been repeatedly denied.

According to the sentence, the duty to protect family life and children takes precedence over the organization of work, as long as it doesn't cause a major upheaval in the company. Most importantly, it creates a new cause of discrimination prohibited by the Constitution. No one, from now on, can be treated unequally due to their family circumstances, and this includes the right to look after one's children.

Germán and his wife decided they would take care of their kids at home

The employer was discriminating "on the basis of family circumstances"

"The court hopes to prevent a situation in which mothers lose options"

What's more, the person who has achieved this historic win for family rights is a man. Germán Higelmo had been trying to get the special education home, which belongs to the Castilla y León regional education and culture department, to move him to the nighshift after the birth of his second child, a daughter, in 2007. Germán and his wife didn't want to send her to daycare; they had decided that they would take care of their children themselves, at home. This meant that their schedules couldn't overlap, and they didn't want her to have to ask for a reduction in hours, with the consequent loss in income this would entail for the family. Now, the highest court in Spain has ruled in his favor.

Refusing to allow the employee to work at night, according to the judges, constitutes discrimination "on the basis of family circumstances" incompatible with Article 14 of the Constitution, which stipulates that "Spaniards are equal before the law, and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance."

According to the superior court's ruling, these "personal or social" circumstances now include one's family situation - the number of children, their age, the care they require, and so on.

But in addition to this new right to non-discrimination, the judges also stated that public organizations and parents have a responsibility to protect the family and children, as per Article 39 of the Constitution. This duty to protect family life, they say, "should take precedence and serve as orientation to clear up any kind of doubt in interpretation" regarding the application of a law "that affects the balancing of professional and family life."

"This is the most novel thing about the sentence," says Beatriz Quintanilla, a professor of labor law from the Complutense University who has served as an advisor to the Secretary-General of Equality Policies for the last two years. "The importance it gives to protecting the family and children calls into question some other regulations in Spanish labor law, which limit the right to reconcile work and family to mothers."

As examples, Quintanilla cites the difference in length between maternity leave (16 weeks) and paternity leave (15 days), and the right to reduced hours during the nursing period. According to the Workers' Statute, these can only be enjoyed by the father if both parents work. In the case of Germán, this reference to the constitutional right to protect the family means that both his workplace and the courts that denied his request must take into account, before making their decision, the worker's "specific personal and family circumstances" - that is, the number of children, their age and school situation, the professional situation of his wife and how refusing him the nighshift could impact his ability to conciliate work and family. They must also consider whether the organization of work in the residence that employs Germán permits these schedule changes without posing a serious problem to its operation.

The various courts that have tried the case repeatedly denied Germán's petition after studying the Workers' Statute and the collective bargaining agreement of his workplace. The social court of Palencia found that the law "does not recognize the father's direct right to opt for a change in shift for family reasons." The social chamber of the Castilla y León regional High Court confirmed that sentence, adding that it saw "no signs of discrimination on the basis of paternity." The Supreme Court's social chamber reached a similar conclusion.

But now the Constitutional Court has found that these courts did not duly protect "the appellant's fundamental right to not be discriminated against on the basis of personal or family circumstances related to his responsibility to take care of his underage children." With this argument, the sentence repeals all the previous ones and sends the case back to the social court of Palencia for a new ruling that does not violate that right. One of the five judges wrote a separate opinion, calling the resolution "interventionist," and bordering on "judicial activism."

The labor unions received the sentence with caution. For them, the key is for collective bargaining agreements to recognize the right to reconcile work and family life. "In this case, Germán has a collective bargaining agreement that did recognize it. And his lawyer - Esperanza de Lorenzo, the public defender assigned to the case - was smart enough to argue that a group of workers in that agreement cannot be discriminated against over others," according to the equality secretary for the UGT labor union, Almudena Fontecha. In Spain, she says, there are over 5,000 such agreements, and not all of them include that right.

Even so, as the unions have pointed out, the sentence hints at a new approach to the problems of family life and its relationship to individual careers. If Germán's employer didn't give him the nighshift, another victim would be left along the way: his wife. "The Constitutional Court is saying that if the father can't share parental duties, the full weight of this responsibility falls upon the mother, whose opportunities would be reduced," according to Fontecha. The mother could be doomed to unemployment, precarious jobs with lower pay, or, at best, to having to ask for a reduction in working hours.

And Germán's cause is anything but an isolated case. According to the Women's Secretary for the CCOO labor union, Carmen Bravo, this petition is "very common" in the hospitality industry. "An employee asks to work at night to attend to his family during the day," explains Bravo.

So far, the solution for many mothers and fathers looking to reconcile thEir professional and family life has been to ask for a reduction in hours. For many workers, this guarantees a schedule, even if it means a big cut in their paycheck. "Professional and family reconciliation is a totally unstoppable trend. It's a new cultural dimension opened by new generations who don't want to give up being with their kids," says Francisco Loscos, professor of human resources at ESADE business school.

Going to court to assert the right to reconcile personal and professional life is ceasing to be a very rare phenomenon, although Loscos points out that in some circles, workers are still afraid of taking the step. Taking the sentence to the extreme: what would happen if the entire afternoon shift asked to work in the morning so they could attend to their families?

"Companies must know how to manage it, but there should be a mechanism to achieve a balance. For instance, a company could be allowed to ask the worker to wait to change shifts until there is an opening," argues Professor Loscos.

Spain is not one of the countries that have best managed to solve the work-family equation. This is partly due to the fact that many jobs, especially in the service sector, call for long workdays with a midday break. "The company should have mechanisms to make sure people don't take advantage of it... But companies are very careful when it comes to reconciliation of work and family life," according to Sandalio Gómez, a professor from the IESE business school.