Analyses the admissibility criteria for flexible working hours.
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As stated in a text published and accessible via the link https://www.tofadvogados.com/post/o-horário-de-trabalho-flexível ,
‘In order to ensure a balance between the performance of duties as a subordinate worker and parental responsibilities, and as a result of the right of all workers, constitutionally provided for in Article 59(1)(b) of the Portuguese Constitution, to ‘the organisation of work in socially dignifying conditions, in such a way as to provide personal fulfilment and allow for the reconciliation of professional activity and family life’, various rights related to parenthood are enshrined in the Labour Code (Law no. 7/2009, of 12 February), namely in Subsection IV of Section II of Chapter I of Title II, called ‘Parenthood’.
In this context (and in return for the employer's obligation to make it easier for the employee to reconcile work and family life when drawing up working hours - see Article 212(1)(b) of the Labour Code), rights to absences, time off work, leave, reduced working hours, etc. are provided for in labour legislation.
Among the rights provided for is the flexible working hours regime, which is governed by articles 56 and 57 of the Labour Code."
We therefore refer you to this text for further considerations on the regime in question.
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According to Article 57 of the Labour Code.
‘2 - The employer may only refuse the request on the grounds of overriding business requirements or the impossibility of replacing the worker if the latter is indispensable.
3 - Within 20 days of receiving the request, the employer shall inform the employee in writing of its decision.
4 - If the employer intends to refuse the application, he shall state the grounds for the refusal in the notice and the employee may submit a written explanation within five days of receipt.
5 - Within five days of the expiry of the deadline for the employee's appraisal, the employer shall send the file for appraisal by the body responsible for equal opportunities for men and women, with a copy of the application, the grounds for the intention to refuse it and the employee's appraisal.
6 - Within 30 days, the body referred to in the previous paragraph shall notify the employer and the employee of its opinion, which shall be deemed favourable to the employer's intention if it is not issued within that period.
7 - If the opinion referred to in the previous paragraph is unfavourable, the employer may only refuse the request after a court decision recognising the existence of a justifying reason.
(...)’
In this case, after the employee's request for flexible working hours, and following the employer's refusal and the CITE's opinion, which was favourable to the employee's request, an action was brought by the employer seeking judicial recognition of the existence of grounds for refusal, under the terms of article 57, no. 7 of the Labour Code.
The employee proposed the following working hours: Monday to Friday from 9.00 am to 5.30 pm with a 30-minute break and rest on Saturdays and Sundays, which falls within the legal concept of flexible working hours.
The Court of First Instance considered that the working hours proposed by the employee were within the legal concept of flexible working hours.
In the case in point, the employer appealed against the decision of the lower court, not disputing that the employee met the conditions to work flexible hours, but on the grounds that it considered that the proposed timetable fell within the legal concept of flexible working hours.
The Guimarães Court of Appeal held that
‘In the case in point, the timetable requested by the Defendant/Worker does not constitute a request for flexible working hours, as she wishes to set the limits within which she will exercise her right, without leaving any room for manoeuvre for the employer to set the flexible timetable. The defendant excludes weekends and compresses the start and end times of her timetable so that the employer can only manage the 30-minute daily rest break imposed by the defendant, which would oblige it to create, as it did, a unique and specific timetable for her medical assistant.’
As stated in the aforementioned ruling, ‘for the employer to be able to establish flexible working hours within the scope of its management powers, it must have some flexibility, and the worker's request cannot be translated into the imposition of a rigid and unalterable timetable by the employer’, highlighting that ‘the [employer's] room for manoeuvre to organise the [worker's] timetable cannot be subordinated exclusively to the defendant's/worker's particular interests, however relevant and respectful they may be, because the interests of the economic organisation in which the defendant operates must also be taken into account, and which is also the reason for her well-being through obtaining her means of subsistence’, since the mechanism in question corresponds to a mechanism for reconciling professional activity and family life.
So the Guimarães Court of Appeal decided to uphold the action, based on the fact that ‘in this case, the request for working hours requested by the defendant does not bring us into line with the typical legal regime laid down in article 56 of the Labour Code, since the working hours requested cannot fail to be considered fixed, rigid working hours, devoid of any flexibility that would allow the employer to draw them up in accordance with the provisions of article 56(3) of the Labour Code.’
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Summary:
‘I - The mechanism provided for in articles 56 and 57 of the CT. is a mechanism for reconciling professional activity and family life, which aims to allow the employee to fulfil his family responsibilities, but does not allow him to define the specific terms in which he wishes to carry out his activity - these are left to the employer, since the determination of working hours is a manifestation of the employer's power of management, with the legal limitations (cf. articles 212 and 97 of the CT).
II - The flexible working hours regime to which an employee with a child or children under the age of 12 is entitled is limited to the employee's choice of the start time and end time of the normal daily working period, with some flexibility, in order to allow the employer to establish both the limits within which the flexible working hours can be carried out and within which the employee can manage their time as they see fit, in order to look after their child or children. This regime does not cover the setting of a fixed timetable at the worker's request.
III - In this case, it is not possible to comply with these parameters required by law, since the timetable requested is a fixed and rigid timetable imposed by the worker, which does not allow for any adaptation or flexibility, since it provides for 8 hours of work per day from Monday to Friday from 9.00 am to 5.30 pm, with a 30-minute break, and it is not clear how the employer can comply with the provisions of no. 3 of article 56 of the Labour Code in order to obtain a flexible timetable.’
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