What does legal guardianship mean?

Published on 02/04/2024

What does legal guardianship mean?

Published on 02/04/2024
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What does legal guardianship mean?

Legal guardianship is a legal concept that allows workers to request a reduction in their working hours, but do you understand the situations that lead to it and the conditions for its implementation? Below, we explain the details of this concept, including its conditions and consequences in the workplace.

What is Legal Guardianship?

It is a legal arrangement used when custody of a minor or incapacitated person is granted to someone responsible for ensuring the protection of their vital rights and assets.

In the workplace, individuals under legal guardianship have specific rights, including the right to voluntary reduction of their daily working hours as outlined in the Workers’ Statute

Legal Guardianship and Voluntary Reduction of Working Hours

As mentioned earlier, the voluntary reduction of working hours is a right for workers under legal guardianship, stemming from the need to balance family and work life. It is an unpaid leave through which the worker can choose their preferred schedule, reducing their working hours.

Naturally, if the employee works fewer hours, their salary will be lower. However, the worker needs free time to fulfill their legal guardianship duties for a minor or incapacitated person. This reduction in working hours can also be applied if the worker needs time to directly care for a family member, provided valid and truthful justification is provided.

The terms of this reduction in working hours must be documented in a written agreement signed by the company and the worker. The right and its conditions are described in article 37.7 of the Workers’ Statute:

“Those who, for legal guardianship reasons, have the direct care of a child under twelve years of age or a person with physical, mental, or sensory disabilities who does not perform a paid activity, shall have the right to a reduction in the daily working hours, with a proportional decrease in salary, of at least one-eighth and up to half of the duration thereof.

The same right shall be granted to those who need to take care of a family member, up to the second degree of kinship or affinity, who, due to age, accident, or illness, cannot take care of themselves and do not perform a paid activity.

The parent, adoptive parent, or permanent pre adoptive or foster carer shall have the right to a reduction in working hours, with a proportional decrease in salary of at least half of the duration thereof, to care, during hospitalization and continuous treatment, for the minor in their care affected by cancer (malignant tumors, melanomas, and carcinomas), or by any other serious illness that requires long-term hospitalization and direct, continuous, and permanent care, as confirmed by the report of the Public Health Service or health administration body of the corresponding Autonomous Community and, at most, until the minor reaches the age of 18. By collective agreement, the conditions and cases in which this reduction in working hours may be accumulated in full days may be established.

The reduction in working hours is an individual right of workers. However, if two or more workers from the same company exercise this right for the same person requiring legal guardianship, the employer may limit its exercise, justifying it by disrupting the company’s operation.

Who Can Benefit from the Reduction of Working Hours due to Legal Guardianship?

To request a reduction in working hours due to legal guardianship, the worker must meet the conditions of one of the situations outlined in the Workers’ Statute, as described below:

  • If they have legal guardianship and direct care of a child under 12 years old. It does not have to be necessarily the worker’s child; it can be their partner’s child.
  • If they have legal guardianship and care for a disabled person who does not work. It is not necessary for them to be a family member. A person is considered disabled if they have a recognized disability level of at least 33%. Additionally, if they receive a disability pension from the Social Security for total permanent disability, absolute permanent disability, or severe disability.
  • If they provide direct care for a family member up to the second degree of kinship who cannot take care of themselves.
  • If they care for a minor under 18 years old due to hospitalization and continuous treatment for cancer or any serious illness requiring long-term hospitalization and direct care.

The reduction in working hours can last as long as the situation requiring legal guardianship persists. The conditions for this are:

  • If they are legal guardians of a minor, the reduction in working hours will be effective until the day before the child turns 12 years old.
  • If it concerns a minor with a serious illness, until the day before they turn 18.
  • If they are legal guardians of a disabled person or care for a family member, there is no maximum duration.

Consequences of the Reduction in Working Hours due to Legal Guardianship

The reduction in working hours due to legal guardianship affects the worker’s schedule and salary. The worker may retain their job position and reduce between one-eighth and half of their working hours, excluding overtime.

The employee does not have the authority to take full days off work unless permitted by the company within the agreement signed by both parties. However, a fixed schedule can be established, even if the company follows a rotating shift system.

It is essential to note that if a worker’s legal guardianship is for caring for a person under 18 years old with a serious illness, the reduction in working hours can be up to half or the entire duration, depending on the circumstances.

The reduction in working hours due to legal guardianship also affects the gross concepts of the payslip. These will be reduced by the same percentage as the working hours, meaning if the worker reduces their hours by 50%, their gross base salary will also be reduced by 50%.

It is worth mentioning Social Security contributions, which during the first year of the reduction in working hours due to legal guardianship, and for two years if the legal guardianship is for the care of children under 12 years old, the full amount will be considered for contribution.

Can the Worker Be Fired during the Reduction in Working Hours due to Legal Guardianship?

The company can dismiss a worker who is in a voluntary reduction due to legal guardianship. However, in the event of dismissal, the company must demonstrate that the dismissal is for disciplinary or objective reasons justifying it.

Failure to provide objective justification for the dismissal of a worker in a voluntary reduction due to legal guardianship may result in automatic nullity of the dismissal due to violation of their fundamental individual rights. This condition of nullity of dismissal also applies to workers who still have their request for reduction in working hours due to legal guardianship pending.

Regarding the calculation of compensation as a result of dismissal following the reduction, the company must pay the corresponding amount as if there had been no reduction in working hours due to legal guardianship.

In conclusion, legal guardianship is a legal concept that entails a series of labor rights for the worker responsible for a minor or disabled person. These rights must be respected and understood by the company, which should provide maximum support to the worker through fair conditions.

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