EU Member States have until 2 August 2022 to implement Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU (the Work-life Balance Directive) (hereinafter as the “Directive”).
The primary objective of the Directive is to ensure or enable a more equal distribution of caring responsibilities between women and men, equality of opportunities on the labour market and equal treatment in the workplace, which should result, inter alia, in a better work-life balance for parents and carers.
The Directive concerns in particular the legal regulation of flexible working arrangements for employees who are parents or carers, which is intended to help employees to remain in the labour market while they are caring for a child or family member and not be forced to choose between family life and career. Other topics covered by the Directive include the legal regulation of paternity leave, parental leave and carers’ leave.
In this article we would like to introduce the changes that will the Directive bring to the Czech legal system in the area of flexible working time arrangements for employees under the current legislation of the Czech Act No. 262/2006 Coll., the Labour Code, as amended (hereinafter as the “Labour Code”), if properly transposed.
However, it should be noted at the outset that the existing legal regulation of this issue, according to the diction of the Labour Code, regulates most of the institutes addressed by the Directive. Even so, the institutes in question will have to be revised and clarified in order to comply with the Directive.
Current statutory regulation of flexible working arrangements
According to the Labour Code, flexible working time arrangements can take various forms, depending in particular on the type of work performed. These include, for example, the negotiation of shorter working hours or other working time arrangements, a working time account, job sharing and teleworking.
The flexible arrangement of employees’ working hours is regulated by Section 241 of the Labour Code, which primarily requires employers to take into account the needs of employees caring for children when assigning employees to shifts.
If an employee caring for a child under 15 years of age, a pregnant employee or an employee who proves that she/he is mainly caring for a person who is considered to be dependent on the assistance of another natural person in the II. to IV. degree, requests shorter working hours or other appropriate adjustment of the fixed weekly working hours, the employer is obliged to comply with the request unless serious operational reasons prevent it.
Regarding the so-called serious operational reasons, according to case law, these include for example the (in)possibility of securing a replacement by an employee performing the same function in the company, financial possibilities and the relationship and continuity of work of employees in individual departments of the company). If the employer cannot meet the employee’s requirements in full for serious operational reasons, it is obliged to provide the employee with shorter working hours or other suitable adjustment of working hours at least as far as its operations allow.
It is therefore clear from the above that the Czech legal order already knows some forms of the institute of flexible working arrangements, but its regulation within the Labour Code is very strict and will need to be refined to properly reflect the requirements of the Directive, in particular, but not exclusively, the process of processing a request for flexible working arrangements and the employee’s return to work as described in the following paragraph.
Requirements for flexible working arrangements according to the Directive
Flexible working arrangements in the context of the Directive refer to the employee’s ability to adapt his/her working arrangements, including the use of teleworking, flexible working hours or shorter working hours.
The Directive contains a key provision on flexible working arrangements in Article 9, requiring EU Member States to take the necessary measures to ensure the right of workers with children up to a minimum age of 8 years and caregivers to request flexible working arrangements to enable them to provide care. At the same time, however, the Directive allows the duration of such flexible working arrangements to be limited in a reasonable manner.
In relation to an employee’s request for flexible working arrangements, the Directive introduces a new obligation for the employer to consider and respond to the request within a reasonable period of time, taking into account the needs of the employer (in particular its resources and operational capacity) and the special needs of the employee (in particular single parents, adoptive parents, parents with disabilities, parents of disabled or long-term sick children or parents in special situations), as well as the duration of the requested flexible working arrangement.
If the employer refuses the request, or if it orders any postponement of flexible working arrangements, it must give proper reasons for its decision.
If the duration of the flexible working arrangement is limited in time, the employee has the right to return to the original working arrangement at the end of the agreed period. At the same time, according to the Directive, the employee has the right to request a return to the original working pattern before the end of the agreed period, provided that a change in circumstances on the part of the employee justifies an earlier return. In such a case, the employer is obliged to consider and respond to the employee’s request for an earlier return to the original work schedule, again taking into account its own needs as well as those of the employee concerned.
In this context, the Directive explicitly allows EU Member States to make the right to apply for flexible working arrangements conditional on meeting a requirement of length of service or duration of employment of no more than 6 months, whereby in the case of successive fixed-term employment contracts with the same employer, the aggregate of these contracts is taken into account for the purposes of calculating the reference period.
Employees who request flexible working arrangements should at the same time be protected from discrimination or any less favourable treatment and any adverse consequences resulting therefrom, and therefore the Directive, in the follow-up Article 12, requires EU Member States to take the necessary measures to prohibit dismissals and any preparatory steps to dismiss employees on the grounds that they have requested flexible working arrangements. Employees who believe that they have been dismissed for this reason can then ask their employer to give proper reasons for their dismissal.
Within the Czech legal system, the legal regulation in this respect will need to be clarified, especially with regard to the process of dealing with employee requests and telework.
In conclusion, the Directive introduces comprehensive changes to bring about a better work-life balance for parents and carers in EU Member States by strengthening the legal regulation of flexible working arrangements.
In view of the fact that EU Member States are obliged to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 2 August 2022, changes can be expected in the relevant areas of the Czech legal system that will properly reflect the exact requirements of the Directive, in particular with regard to the institution of flexible working arrangements, paternity leave, parental leave and parental leave as well as substantively related legal regulations.
If you have any questions regarding this issue or current legislation, please do not hesitate to contact us.
Mgr. Tereza Dvořáková, attorney-at-law – firstname.lastname@example.org
Mgr. Jakub Málek, partner – email@example.com
19. 11. 2021