The Superior Court of Justice of the Canary Islands (TSJC) has integrated the perspectives of gender and childhood in a sentence that forces a hospitality company of Lanzarote to reverse their decision to change workplace to an employee who takes care of a child with disabilities. This judicial resolution, which is firm since the beginning of January, estimates the resource of the worker and concludes that this transfer, which implies a route of 37 minutes by car, implies “an evident damage” both for the care of the child and for the organization of their activities and, therefore, for family conciliation.
The events date back to 2022. In August, the company that had subrogated the worker, with a professional category of senior assistant and more than two decades of seniority, had informed him that from that date he would be attached to a center located in the town of Playa Blanca, in the municipality of Yaiza, in the south of the island. Until then, he worked in Puerto del Carmen (Au), about 30 kilometers from his new destination and about 20 minutes from his home.
Three years before that transfer, the employee and the company had reached an agreement of time concretion for family conciliation. His day was reduced to three days a week, each of eight and a half hours, and was exempting him from working on Tuesdays and Thursdays (except holidays) to be able to take his son to therapy. That agreement also contemplated that it would rest on Saturdays and Sundays in consecutive or alternate weeks.
The worker filed a lawsuit against that transfer claiming her right to continue carrying out her workday in the previous conditions and, therefore, in the center where she had been exercising until that date. The Social Court 3 of Arrecife dismissed in the first instance its claims at the conclusion that there was no geographical mobility, which there was no need for the employee to change residence.
That first sentence referred to a clause of the contract that includes the power of the company to transfer the auxiliary to any of the work centers on the island, since the distance between them in no case exceeds 50 kilometers. In the opinion of the first instance magistrate, the change imposed by the company could not be considered a substantial modification of working conditions, since it did not force the worker to go to another home.
Faced with that sentence, the worker’s lawyer appealed, proposing a modification of the story of Acts that was welcomed in its integrity by the TSJC Social Chamber. The High Court added, among other issues, that the worker’s son has a 50%disability, he requires support, is enrolled in an enclave classroom, is collected by school transport at 08.00 in the family’s home from Monday to Friday, and goes to therapies on Tuesdays and Thursdays. It also states in the recent sentence that the father works for the Canary Health Service in the morning shift on Mondays and Tuesdays, in the afternoon on Wednesdays and Thursdays, and alternate on Fridays.
These facts incorporated into the story are, in the opinion of the TSJC, “relevant” to resolve the background of the matter.
The Social Chamber’s judgment addresses, in the first place, the question related to geographical mobility. The magistrates, with Ramón Toubes as a rapporteur, coincide with the judge of first instance that it is a “non -substantial” modification, which “does not require any formality”, since there was a contractual condition (the possibility of transfer to any center of the island) that remained after the subrogation and that only required that the need of the company would be justified and that it was notified in advance of fifteen days.
However, and here lies the key to this judicial procedure, the worker did not claim the cancellation of the transfer by geographical mobility, but for her right to family and work conciliation. And at this point the TSJC does right. “The peculiarity that this case presents is that the judgment of instance does not mention this circumstance, which was alleged in the demand, for understanding at first that, since there was no geographical mobility, it was only dismissed it.” In this sense, the Social Chamber emphasizes that every business decision, “whatever its nature”, has as its “unavoidable” limit respect for the fundamental rights of workers, “among which is the right to equality and non -discrimination.”
The TSJC affects the need to integrate gender and childhood perspectives into prosecution. According to the data provided by the General Council of the Judiciary and collected in the study of the assessment of the conciliation measures of family and personal life and working life, 84% of the judicial actions on this matter are proposed by women. “The right to family and work conciliation has a female face. The disproportionate gender impact is, at this point, unquestionable, ”says the sentence, which also highlights that, according to the European Care Strategy of the European Commission, a total of 7.7 million women have left their jobs due to care responsibilities.
“The difficulties of working mothers to reconcile the care of their sons and daughters with professional life, without remuneration penalty, inevitably drag them to request drastic reductions of day with remuneration and contribution loss, without a few difficulties in the hour According to the National Social Security Institute) and, in the worst case, women pushing the abandonment of the job, either temporarily (exceeds) or, definitely, ”collects the judicial resolution.
For the TSJC, in the case of the worker of Lanzarote “it has not been taken into account in any way” that the change of work center implies “a direct affectation” to her right to conciliation. With this transfer, the employee “could never arrive on time to her job, since the child is collected by school transport at the family home at 8.00,” she has to enter at 8.30 am and the journey is at least 37 minutes.
The High Canarian court estimates the claimant’s appeal for violation of her right to reconciliation and, in addition, because the company did not respect the period of fifteen days for the notice.
That sentence was not appealed, so it is firm since January, according to the sources consulted by this newspaper. Following that resolution, the company has kept the worker in the workplace in which she exercised until then.
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