The flexible working hours regime has been the subject of intense recent debate in our case law. In fact, it is a system that guarantees the right of workers with children under the age of 12 to ask their employer for working hours that are compatible with their family life. This right depends on a simple request in which the worker identifies that the child is part of their household. Consequently, within 20 days, the employer must inform the employee that the request has been granted or that the refusal has been duly substantiated. In the event of a refusal, the employer must send the application to the CITE (Commission for Equality and Employment), which must issue a favourable or unfavourable opinion. In the event of a negative opinion, the employer cannot enforce its refusal until it has received a court decision in favour of the reasons given.
This scheme has the merit of ensuring that workers with young children can provide them with the necessary support, by making their working hours dependent on their employer. However, the granting of these hours can cause some inconveniences in the way companies manage their schedules or lead to some labour conflicts in work teams, since complying with the request can lead to changes in the schedules of other workers. In other words, this is a right granted to workers that does not require the existence of an objective need.
One issue that has been controversial in case law is the concept of the right. Article 56 of the Labour Code states that flexible working hours, drawn up by the employer, must: (i) contain one or two periods of compulsory attendance, with a duration equal to half the normal daily working period; (ii) indicate the periods for starting and finishing normal daily work, each with a duration of no less than one third of the normal daily working period, and this duration may be reduced to the extent necessary for the timetable to be contained within the establishment’s operating hours; and (iii) establish a rest break of no more than two hours. However, the majority of recent case law has aligned itself with an apparently contra legem interpretation in the sense that it can be the worker who determines the assignment of a fixed timetable by request.
As it happens, the Guimarães Court of Appeal seems to have started a new trend in its ruling of 11 July 2024. According to this decision, the mechanism established by this scheme is a mechanism for reconciling professional activity and family life, with the aim of allowing the worker to fulfil their family responsibilities. However, despite this context, this court believes that the regime does not allow the employee to define the specific terms in which he wishes to carry out his activity, since these are left to the employer, since determining working hours is a manifestation of the employer’s power of management, with the legal limits set out in articles 212 and 97 of the Labour Code. On the other hand, this judgement makes a literal interpretation of the law when it states that setting a fixed timetable at the employee’s request is not covered by this regime.
In fact, to accept that flexible working hours are fixed is to deny their purpose. Thus, following this reasoning, the judgement provides the solution to the specific situation: ‘In this case, it is not possible to comply with the 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, 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.’
We believe that the decision of the Guimarães Court of Appeal is on the right track and has rigorously applied the flexible working hours regime in force in Portugal. Whilst recognising that this is a counter-cyclical decision, it could be seen as a new trend. Let’s wait for the next rulings to see if this is the case.
DCM | Littler team