Ana M. forms a single-parent family, with two small children in her care, ages 3 and 7. Cooperative member of the Eroski supermarket chain since 2012, she works in administration tasks and during the pandemic she asked the company to telecommute in order to better reconcile the care of children, who she did not want to leave with the grandparents, who are more vulnerable to the virus. “My parents are very old, 80 years old,” explains the worker. Eroski refused, arguing that the conciliation rights she was claiming did not correspond to her because she was not an employed worker, but a cooperative member. A judge has assessed his claim and condemns the company to grant him telecommuting.
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The magistrate of the Social Court number 5 of Madrid declares the right of Ana M. to adapt her position so that she can do it remotely until the end of the 2020-2021 school year “and with the appropriate extensions at the request of the plaintiff” as long as “the same circumstances” remain. Thus, it condemns Eroski to “make this right effective”, according to the sentence of last May 4, to which elDiario.es has had access.
“But the company refuses to abide by the sentence,” Ana M. laments to this medium. “I rejoined on Monday the 21st and he told me that I have to go in person because the sentence has been appealed, but the judge makes it clear that it cannot be appealed,” he adds. The administration has been without work since last November, when she asked for a leave of absence to take care of her two children due to Eroski’s refusals to facilitate remote work.
elDiario.es has contacted Eroski to obtain his version of this case, but has not received any response from the company until the moment of publication of the article.
Conciliation rights of employees
“We give great importance to the sentence,” explains Esther Comas, a lawyer for the Colectivo Ronda law firm that has defended the worker. Not only because of the private victory of Ana M., but because it recognizes a cooperative worker some conciliation rights typical of salaried people, as set out in the Workers’ Statute. “There was a pronouncement in this sense from the general counsel of the Court of Justice of the EU, but I have not found any sentence that has recognized it so far,” says Comas.
The worker members are governed by the legislation of cooperatives and their internal statutes. This is generally the case, but the courts have already sometimes recognized labor rights for their workers. For example, the Supreme Court recalled in a 2019 ruling regarding the right to freedom of association that worker members present a “mixed condition of legal status”, on the one hand corporate – since they are part of the cooperative company – but also labor “in many respects”.
“In the present case we are not facing a question related to freedom of association but we are facing a constitutional question and especially a gender perspective,” emphasizes the magistrate when resolving the case of Ana M. Given the importance of the rights in question, The judge considers that the case is resolved “applying the Constitution as a norm”, given the “gap” in the regulation of the Eroski cooperative on this issue (it does not address teleworking) since this type of permits “is public and notorious that they are requested more by women than men as they have traditionally received the most continuous care of minor children “.
“We must therefore conclude that the plaintiff has the right to request these permits, not only the one provided for in the MeCuida Plan, but also those provided for in Article 34 of the Workers’ Statute, which was her main request,” adds the magistrate. Ana M. first requested the adaptation of her position by virtue of the so-called “a la carte shift” of article 34.8 of the Workers’ Statute. Given the refusal of the company, he resorted to the MeCuida Plan, which regulates special conciliation rights within the context of the coronavirus pandemic, but this option was also rejected by Eroski.
Ana M. asked for access to telework when the pandemic put her parents at risk to take care of their two young children. “Besides, they are already very old,” he explains. On this, the judge specifies that it is not assessed “whether or not the grandparents of the minors can take the children to school since it is the obligation of the parents to take care of these issues.”
“No understanding” about conciliation
The cooperative member celebrates the result of the sentence, but even so it highlights that the company refuses to comply with the ruling. “On Monday the 21st I will have to go to my job in person,” he criticizes. Her lawyer has asked the court to execute the sentence, so she hopes that the magistrate will force Eroski to allow teleworking as soon as possible. Esther Comas believes that until the youngest girl completes nursery school this year, on July 30, Ana M. has the right to telework and, in addition, the cooperative has already requested an extension until September.
Ana M. assures that, despite the judicial victory, she does not like the whole process that she has had to undertake to be able to work remotely and to be able to better combine the care of her children. “There is no understanding, but not even during confinement, during which they did not want to allow me to telework even though I had no one to help me. I was alone with my children at home,” she complains. “Especially surprising that this happens in a cooperative, when it is supposed to have another spirit and background of participation and agreement with the workers,” he highlights.