Reconciliation of work and family life, or the so-called work-life balance, is a long-term problem of labor law relations, and therefore logically a trend in the field of labor law regulation. As part of the employment relationship, employees request or, on the contrary, progressive employers offer greater flexibility, both in terms of forms of employment and working conditions. In the Czech labor market, we can find so-called home offices, sick days, or, for example, shared or shared workplaces[1].
However, not only these relatively new institutes are able to ensure the flexibility of labor law conditions, but also classic elements of the employment relationship, such as the possibility of negotiating a different range of working hours, negotiating a different length of working time or dividing it into shifts, which are in the Labor Code[2] introduced for many years. However, all the listed institutes have one common feature. If they are to function flexibly enough for employees, they must be agreed upon with the employer. However, the need for consensus on both sides of the employment relationship is not always necessary. The Labor Code protects a certain category of employees more by giving them the right to request an adjustment of working hours, which corresponds to the employer's obligation to comply with such a request.
Appropriate adjustment of working hours
According to § 241, paragraph 1 of the Labor Code, the employer is also obliged to take into account the needs of female employees and employees caring for children when assigning employees to shifts (this rule is general and the Labor Code does not develop it in any way - it therefore applies to all employees regardless of the age of the child) . The second paragraph of the same provision also allows an employee caring for a child under the age of 15, a pregnant employee, who proves that he or she mainly takes care of a person who, according to a special legal regulation, is considered dependent on the help of another natural person[3], to ask the employer for shorter working hours or another appropriate adjustment of the set weekly working hours. This right is then matched by the employer's obligation to comply with this request, unless there are serious operational reasons preventing him from doing so.
The Labor Code does not require the employee's request to be in writing, however, it can of course be recommended that the employee forward his request to the employer in a demonstrable way (ideally in writing with delivery confirmation).
The purpose of the aforementioned amendment is to preserve the employee's ability to remain involved in working life despite personal or family circumstances that would not allow him to continue to work in the original scope or under the originally set conditions (working hours, working time schedule) and would probably force him otherwise employment to end.
Shorter working hours are working hours agreed below the specified weekly working hours (in single-shift operation, i.e. below 40 hours per week). An employee can request both a reduction in working hours and a suitable schedule of working hours, e.g. only for certain days of the week, or even for every day, but for fewer hours than before.
The employer's only option to effectively not comply with this request is the existence of serious operational reasons. The Labor Code does not define the concept of serious operational reasons. It can be assumed that these must be qualified operational reasons (i.e. not common). In general, it can be stated that the employer may not comply with the request if, objectively speaking, the orderly operation of the employer (in the sense of the fulfillment of tasks or activities of the employer) would be prevented, significantly negatively disturbed or seriously threatened as a result of the requested adjustment of working hours. At the same time, it should be added that these are probably not serious operational reasons if the employer could simply overcome them with the help of other employees or by other measures that would not be too complicated or expensive for him (more on that below in the article).
The legality of rejecting an employee's request for adjustment of working hours must be assessed according to the decisive state of individual circumstances at the employer at the decisive time, i.e. at the time of the employee's current request for adjustment of working hours. It is obvious that in practice it will often happen that the employee and the employer do not agree on whether a specific situation shows signs of serious operational reasons or not. Of course, the essential thing is that the employer must prove the existence of serious operational reasons in the event of a dispute.
As in other cases where the legislation is relatively general, it is appropriate to be inspired by the jurisprudence of the general courts, which dealt with a situation where an employee requested an adjustment of working hours and was refused by the employer citing operational reasons.
The court will primarily examine the nature of the operation and should try to evaluate the seriousness of the intervention in the employer's operation by comparing the state of operation before and after the requested change in the working hours of a specific employee, as well as the employer's ability to eliminate any negative effects of the requested change with available organizational and technical measures, taking into account the number of employees and their substitutability, remuneration options and complications during representation. It is a question to what extent, in a specific case, the court would require the carrying of the burden of proof on these facts (the existence of personnel or organizational options on the part of the employer to overcome possible operational difficulties) on the part of the employee, who in most cases has limited opportunities to obtain evidence regarding operation of the employer. The employer would be in a simple situation without (at least) asserting the existence of these possibilities on the part of the employee, where it would be enough to claim that he simply does not have such a possibility and, as is known, negative facts are hardly proven).
Decision-making practice of courts
The jurisprudence on the provisions of § 241, paragraph 2 of the Labor Code is not very comprehensive. The authors of this article are aware of three substantial decisions of the Supreme Court of the Czech Republic and one decision of the Supreme Administrative Court of the Czech Republic, which decided under sp. stamp 12 Ksz 7/2016 as a disciplinary court and this provision of the Labor Code was briefly touched upon in the justification.
The Supreme Court of the Czech Republic stated regarding serious operational reasons: "When assessing whether there are serious operational reasons on the part of the employer in the sense of § 241, paragraph 2 of the Labor Code, the decisive factor is the situation that exists at the time when the validity of the application is assessed shorter working hours or other appropriate adjustment of the specified weekly working hours. When assessing the seriousness of operational reasons, it is necessary to proceed from this state both when examining the nature of the operation and other facts about the organizational and technical conditions of the employer, the possibility of their mutual representation and the possibility (adjustment) of their remuneration for the work performed. It is – generally speaking – unquestionable that the more employees it has, the better its employees can represent each other and the more funds available for their remuneration, and that serious operational reasons can never prevent the granting of a request submitted by an employee whose work the employer does not need at all for the performance of its tasks or activities."[4] If the substitutability of employees is given, it will probably not be possible without further ado for the employer to refuse the request for shorter working hours of the employee or other adjustment of working hours.
When assessing an employee's application, the principle of equal access and the prohibition of discrimination must, among other things, be observed. Basically, all female and male employees in a comparable position can request from the employer, pursuant to Section 241, paragraph 2 of the Labor Code, shorter working hours or another appropriate adjustment of the specified weekly working hours. The employer is obliged to accommodate everyone without distinction, which is confirmed by another decision of the Supreme Court of the Czech Republic[5]. The plaintiff asked the employer to adjust the working hours so that she would be assigned mainly to services at night, on Saturdays and Sundays. She justified her request by saying that her husband could take care of the children during these time periods. In the aforementioned lawsuit, the employer defended his procedure by saying that there would be discrimination against other nurses, because during the mentioned time periods, the performance of the nurse's work was better paid than during normal daily services. He further stated that if he allowed the adjustment of the working hours of an employee caring for children, then, according to him, a precedent would be set where the said shifts would be served mainly by nurses caring for children and other staff would be disadvantaged. The Supreme Court stated: "All female employees of the defendant caring for a child under the age of 15 or pregnant employees have the right to shorter working hours or another appropriate adjustment of the set weekly working hours, and the defendant, if they request it, is obliged to agree with them, or allow them less than the specified working hours…. The decisive factor cannot be whether the precedent objected to by the defendant would be created by complying with the plaintiff's request, but the actual operating conditions of the defendant." children, the argument is lost. In this decision of the Supreme Court of the Czech Republic, it is emphasized that the only criterion for the employer when processing the employee's application must be his operational conditions. Any other factors do not and may not even be taken into account in his decision-making (e.g. it is not possible for the employer to assess the seriousness of the situation on the part of the requesting employee and, depending on whether it seems serious enough or, on the contrary, solvable in another way, decide whether to comply with the request) . It is also not appropriate for the employer to justify the request by the fact that the employee will eventually be followed by other employees or employees in a similar life situation, and this could lead to the impossibility of ensuring smooth operations at the employer in the future. It is, of course, a question whether the employer would not run into serious operational problems in a situation where he would accommodate several employees in a row at the same time and would no longer have the available organizational or personnel measures available for the umpteenth request of another employee. However, this is only speculation. The court would properly assess the specific conditions of operation.
And finally, the third important decision is the judgment of the Supreme Court of the Czech Republic[6], which substantively complements the adjudicated definition of serious operating reasons. In the cited dispute, the judge caring for minor children asked the employer for shorter working hours. However, he did not accept it due to personnel reasons. In the dispute in question, the Supreme Court stated that "the existence of serious operational reasons... must be examined according to the state of the employer's operation, as it is at the time when the validity of the request for shorter working hours or for another appropriate adjustment of the set weekly working hours is being assessed." Serious operational reasons prevent the granting of such a request even if the impossibility, disruption or serious threat to the proper operation of the employer would not occur (would be averted) if the employer hired another (another) employee." This addition is essential mainly because the court states that the employer cannot reject the request with the justification of a lack of employees, as ensuring a sufficient number of employees and their substitutability is only his managerial duty and his organizational inability to solve the situation in a crowd cannot go to the burden of the employee. On the other hand, we would not dare to generalize this legal opinion and assume in all cases that the employee can successfully argue in any court proceedings that the employer could secure a new employee to cover the shortfall in the workforce. Of course, it will be necessary to take into account the specifics of which operation.
At the end of the list of relevant jurisprudence, it is appropriate to add the decision of the Supreme Administrative Court of the Czech Republic as a disciplinary court in the matter of disciplinary proceedings against a district prosecutor. The public prosecutor was reprimandably guilty of leaving the workplace during her working hours to pick up children from school. The Disciplinary Chamber of the Supreme Administrative Court stated with the highest degree of generality in the given case that "even public prosecutors who take care of small children are not excluded from the right to demand an appropriate adjustment of working hours and that this right cannot be limited only to the care of children aged up to three years.”[7]
The Labor Code does not explicitly regulate the situation when the reason for which the employee requested shorter working hours ceases to exist (shorter working hours are associated with a reduction in wages or salary to correspond to these shorter working hours, and it is therefore logical that after the reason ceases to exist the employee motivated to return the employment to the originally agreed level). In other words, the question is whether the adjustment of working hours leads to a change in the agreed working conditions, and their re-change requires an agreement between the employee and the employer or other facts established by law (e.g. again the conditions specified in § 241, paragraph 2 of the Labor Code. Or is it a temporary change , which can be changed both by the employee with unilateral information addressed to the employer that the reasons for this adjustment of working hours have disappeared and it is possible to perform the work within the originally agreed scope, and also by the employer by the fact that serious operational reasons for the future appear preventing this permitted adjustment of working hours The jurisprudence is silent in this regard, with one exception. Only the above-cited judgment of the Supreme Court of the Czech Republic, issued under file no. 21 Cdo 1821/2013, positively expresses the possibility of unilateral cancellation of permission to adjust working hours by the employer:
"... the employer may cancel his decision to allow an employee caring for a child under 15 to work shorter hours if there are serious operational reasons that would prevent this decision."
Finally
The reason why it is not and even with the upcoming amendment to the Labor Code in 2016-2017[8] it was not proposed to introduce the definition of the institute of serious operational reasons into the code, it is impossible to cover all possible operational reasons that could arise for individual employers. Above all, the difference in working conditions and the structure of the distribution of work at individual employers across all sectors of the economy does not allow the legislator to legislatively adjust the definition with an exhaustive list, which would establish barriers for serious operational reasons (or their list) and thereby contribute to simplifying the assessment of employee requests. Even in the future, it will be necessary to follow a somewhat intuitively accessible jurisprudence.
The authors of this article allow themselves to conclude somewhat broadly, namely with the basic principle contained in the provision of § 3, paragraph 1 of the Civil Code[9]: Private law protects the dignity and freedom of a person as well as his natural right to take care of his own happiness and the happiness of his family or people close to him in a way that does not cause harm to others without reason. This principle expresses the natural right of man to act according to his will and his discretion and thereby obtain benefit for himself and his family. The rule is not to cause harm to others for no reason. This principle is then supplemented for the given situation by one of the basic principles of labor relations, namely the principle regulated in § 1a paragraph 1 letter a) of the Labor Code, which is a special legal protection of the position of the employee (which paragraph 2 of the same provision ranks among the values that protect public order). This principle is an expression of the protective function of labor law, and its manifestation is the protective provisions in labor law, which are based on the assumption that the employee is the weaker party in the employment relationship. It is obvious that many employees will find it uncomfortable to oppose their employer in a situation where they reject their request with a vague reference to non-specific, serious operational reasons. It is with reference to the aforementioned principles that employees should not be afraid of adverse consequences, and if they are in a situation where they need to adjust their working hours and meet the criteria established by law, they should at least insist that the employer explain and document the seriousness of the operational reasons, and if fail to do so or the explanation is insufficient, they should not be afraid to exercise their right through the courts.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
[1] He very clearly discussed the shared workplace in the legal arrangements of the Czech and Slovak Republics Mgr. Michal Vrajík in the article Shared workplace in the Czech Republic and the Slovak Republic in the periodical Praktická personnelistika, volume III, number 7-8, on page 10 et seq..
[2] Act No. 262/2006 Coll., Labor Code, as amended.
[3] Regarding the differentiation of persons dependent on the help of another natural person, we state that these are persons in II. (moderate addiction) and III. (severe addiction) or IV. (total dependence) degree.
[4] Judgment of the Supreme Court no. Stamp No. 21 Cdo 1821/2013 of July 9, 2014.
[5] Judgment of the Supreme Court no. Stamp No. 21 Cdo 1561/2003 of December 17, 2003.
[6] Judgment of the Supreme Court no. stamp 21 Cdo 612/2006 of June 5, 2007.
[7] The decision of the disciplinary panel in the cases of state representatives of the Supreme Administrative Court, no. stamp 12 Ksz 7/2016-137 of 28 February 2.
[8] Draft law amending Act No. 262/2006 Coll., Labor Code, as amended, also as Parliamentary Press No. 903, which the government submitted to the Chamber of Deputies of the Czech Republic on 9/9/2016 and whose discussion was suspended in the second reading on 7/6/2017 at the 57th meeting by Resolution No. 1701.
[9] Act No. 89/2012 Coll., Civil Code, as amended later.
