Decision by the Supreme Court of Justice on the obligation for the employer to dismiss employees with children up to 12 years of age from the provision of work on weekends, upon their request

Flexible working hours for employees with family responsibilities

As per articles 56º and 57º of the Portuguese Labour Code, employees with children up to 12 years of age are entitled to provide their work under a flexible working hours regime.
Flexible working hours consist in a working schedule within which an employee can choose, within certain limits, the hours of start and finish of the normal daily working schedule, whilst being certain that it is still up to the employer to “design” the employee’s working schedule.
In order to benefit from this flexible working hours’ regime, the employee must request its implementation to the employer, in writing, referring the timeline foreseen for the application of the new type of working schedule, as well as proving that the child lives with the employee, and both are part of the same household.
Employers may only refuse the implementation of flexible working hours for these employees, in writing, with basis on imperative needs of the company or on the impossibility of replacing the employee, as he/she is deemed indispensable.

The controversial issue at stake

The dispute that triggered the issuing of the Supreme Court of Justice’s decision originates on the refusal, by an employer, to an employee’s request for the application of the flexible working hours regime, considering she was a mother of an 11 years old and of a 10 months old, namely for the dismiss of provision of work on Saturdays and on Sundays.
The employee claimed that she did not have any family support nor conditions to leave their children with others and that her spouse was also obligated to provide his work on the weekends.
The employer, a company with a social purpose of exploration of commercial establishments functioning throughout the seven days of the week, alleged that the request for the flexible working hours does not include the choice of the weekly rest days and hence it is not allowed for the employee to determine the days in which she intends to provide her work.

Considerations by the Supreme Court of Justice

The Supreme Court of Justice envisages that when interpreting the regulations on the flexible working hours regime for employees with family responsibilities, one must consider the constitutional principle of promotion of conciliation between professional activity and personal life.
The Court adds that such principle, imposing the obligation for positive discrimination on behalf of family, with the institutionalization of flexible working schedules, does not preclude the inclusion of weekly rest in the flexible working hours regime.
The Court further stated that, notwithstanding the possibility of the employer to justify why it does not have the necessary conditions to observe the employee’s request, in this case, the employer did not contend any fact that made it impossible for the company to keep its normal functioning nor did it claim that it was impossible to replace the employee.
This decision reinforces the importance of observing the principle for the conciliation of professional activity and personal life and also the importance for employers to issue a concrete and objective reasoning, when existent, upon refusal of an employee’s request for the implementation of flexible working hours.

Access the entire wording of the Supreme Court of Justice’s decision issued on the 12th of October, 2022 here.