In many respects, the coronavirus epidemic has led to a shift in labour market trends. This is not just in the form of teleworking and home office, which is allowed by many employers, but also in the increasing use of flexible work policies. After the epidemic, teleworking was replaced by flexible work schedules, especially in particularly suitable jobs. In this article, we look at the rules and specificities.
Pursuant to Section 96 (2) of Act I of 2012 on the Labour Code (Labour Code), the employer may delegate the right to schedule working hours to the employee in writing with regard to the independent organisation of work. However, the application of a flexible work schedule does not in itself preclude the employee from carrying out certain tasks within the scope of his/her work only at certain times or periods (e.g. attending meetings, client meetings).
When it comes to flexible work schedules, a significant part of the rules laid down in the Labour Code Section 96(3) do not apply. Since the employee itself determines its own working hours, the rules on the communication of working hours, breaks, maximum daily or weekly working hours or working on public holidays do not apply. In the case of casual employment, leave and sick leave shall be granted and recorded in accordance with the normal working hours on weekdays.
If the working time is not fixed, the employer is not obliged to keep records of the employee’s working time, so the parties do not have to keep attendance sheets. However, leave taken must still be recorded, i.e. it must be recorded how much of the leave was taken during the year and when it was taken. As a general rule, the rules on overtime and its accounting do not apply in the case of flexible work schedules, as the employee is entitled to organise its working time itself. However, this rule should not lead to a situation where the overtime actually worked by the employee is not recognised by the employer.
However, in the case of a flexible working schedule, the employer may not assign more tasks to the employee than could realistically be performed during the daily working hours set out in the employment contract. If this were the case, the employer could be found to have abused its rights [Section 7(1) of the Labour Code] and the employee could claim back pay for the hours worked in excess of the hours stipulated in the contract. If an employee is required to work 8 hours under the general rules, even if its working hours are irregular, but proves that the employer required it to perform a quantity of work which it could not have performed in that time, it may claim compensation for the extra hours worked. However, there is nothing to prevent an employer from drawing up a policy on overtime, which may stipulate that extraordinary working time after the end of the working day or on a weekly rest day or rest period may be spent with work only if the employer orders it in writing or approves it in writing at the employee’s request (for example, the immediate superior must be informed before the work starts). This procedure will also minimise the risk of a possible claim against the employer in the event of an employee’s entering “extra work” in the employer’s (optional) record-keeping systems.
It is important to underline that the exemption from the recording of working time for an informal working time does not mean that the employer cannot check that the employee is working the hours agreed in the employment contract. The employer may ask the employee to account for the time it has worked, recording the time spent on which task. If it can be established from the data recorded in the statement provided to the employer that the employee does not fulfil or does not fully fulfil its work obligations within the period of time laid down in the employment contract, the employee is in breach of its main obligation under the employment contract and may be held liable.
In connection with the introduction of informal working and the development of related regulations, it is advisable to seek the support of an expert in labour law matters.
The content of this post does not constitute legal or tax advice and does not create an engagement. In each case, detailed knowledge of the individual case is necessary to assess it and to find a tailor-made solution. If you have any questions, please do not hesitate to contact us at http://www.bekespartners.com/.
