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 organization of work in socially dignifying conditions, in such a way as to facilitate 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 as a counterpart to 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 Labor Code), rights to absences, time off work, leave, reduced working hours, etc. are provided for in labor legislation.
Among the rights provided for is the flexible working hours regime, which is governed by articles 56 and 57 of the Labor Code.
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More specifically,
According to Article 56(1) of the Labour Code, in the case of a child under the age of 12, or a child with a disability or chronic illness who lives with them, either (or both) of the parents has the right to work flexible working hours.
Under this regime, the employee may choose, within certain limits (namely the employer's opening hours and the usefulness of the duties to which they are assigned), the hours in which they will work. They may work up to 6 consecutive hours and up to 10 hours in the same day, although it is mandatory that the average weekly working hours correspond to the normal working hours in each four-week period.
In order to exercise this right, the employee must, 30 days before the start of the intended period, submit the respective request, indicating the period of validity within the applicable limit, as well as declaring that the minor lives with the applicant/employee in a communal household and preferably indicate the elements listed in i., ii. and iii. of al. b) of the following paragraph.
- cfr. al. a) and i. of al. b) of no. 1 of art. 57 of the Labour Code.
Accordingly, the employer may, within 20 days of receiving the request,
a) refuse the request on the grounds of overriding business requirements or the impossibility of replacing the worker if the latter is indispensable; or
b) accept it, drawing up a timetable that complies with the following rules:
i. It contains one or two periods of compulsory attendance, with a duration equal to half the normal daily working period;
ii. Indicate the start and end times of normal daily work, each lasting no less than one third of the normal daily working period, which may be reduced to the extent necessary for the timetable to be within the establishment's operating hours; and
iii. Establish a rest break of no more than two hours.
- cfr. no. 3 of art. 56 and no. 1 and 2 of art. 57, both of the Labour Code.
If the employer intends to refuse the request, the employee can then submit an appraisal within 5 days.
After 10 days from the communication of the intention to refuse the request, the employer must then send the file for consideration by the competent authority in the area of equal opportunities for men and women, with a copy of the request, the grounds for the intention to refuse it and the employee's assessment, which, within 30 days, notifies both the employee and the employer of its opinion, failing which it will be considered favorable to the employer.
If this opinion is favorable to the employee, the employer can only refuse the request in the context of legal proceedings.
- cfr. 3 to 7 of Article 57 of the Labour Code.
In turn, if the employer fails to comply with the applicable rules,
a) fails to communicate its intention to refuse the request within the aforementioned period of 20 days after receiving the request;
b) having communicated its intention to refuse the application, fails to inform the employee of its decision within five days of the notification issued by the competent authority in the area of equal opportunities for men and women or, failing that, within 30 days; or
c) does not submit the file to the competent authority in the area of equal opportunities for men and women within 10 days of the notification of the intention to refuse the application;
the application will be deemed to have been accepted by the employer.
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More recently, higher courts have examined the possibility that, under this system, the worker can “demand” that rest days fall on certain and specific days, because the law refers to daily limits and not specific days.
In this context, the Supreme Court of Justice has already had the opportunity to rule on the admissibility of the worker being able to specify rest days, namely in order to reconcile them with the opening hours of crèches/kindergartens.
- See, by way of example, Judgments of the S.T.J. handed down on 22/06/2022 and 12/10/2022 in cases 3425/19.4T8VLG.P1.S2 and 423/20.9T8BRR.L1.S1, respectively, in which the Plaintiffs/Employers were “Primark Stores”.
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Final note:
The rules mentioned here apply to general legal employment relationships and do not take into account specific legislation or Collective Bargaining Agreements.
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