Flexible working arrangements – a new institution in the Labour Code

The April amendment to the Labour Code within the implementation of Directive 2019/1158 (the so-called 'work-life balance directive') introduced several changes to employees' rights related to parenthood. They aim to make combining work and childcare easier for these employees. One of these changes is the addition of a new institution of so-called flexible work arrangements to the Labour Code (Article 188¹ of the Labour Code).

The new regulation is intended for employees upbringing a child up to the age of 8. The legislator uses the criterion of upbringing. Therefore, what matters is whether the employee has permanent custody of the child and not whether they are connected with the child by biological kinship. Flexible working arrangements can, therefore, also be used by an employee who is not the child’s parent, including an adoptive parent.

Flexible working arrangements include solutions already known from the Labour Code:

• remote working
• intermittent working time system (Article 139)
• the shortened working week system (Article 143)
• the weekend work system (Article 144)
• the flexible working time schedule (140¹)
• the individual working time schedule (142)
• reduction of working time.

Thus, the term stands for a collective name for such forms of work organisation which, depending on the employee’s life circumstances, may allow them to better reconcile the professional life with the caring and educational role. It is worth adding that the catalogue included in Article 188¹ of the Labour Code is closed.

That means that under a flexible work arrangement, an employee cannot request to be employed, for example, under a task-based working time system.

The Labour Code had previously provided for the option to request the introduction of the above forms of work arrangement for selected groups of employees who raise children (cf. Art. 67¹⁹ par. 6 and 7 of the Labour Code and Article 142¹ of the Labour Code). So what makes the new regulation different from the previous ones – apart from the age criterion of the reared children?

Apart from technical issues (such as the deadline for filing and processing the application), the critical difference lies in the extent to which the employer is bound by the employee’s application.

The regulations of Article 67¹⁹ of the La bour Code and Article 142¹ of the Labour Code already referred to above state that the employer may refuse to grant the request only if, due to the form of labour organisation, the work cannot be performed in the manner proposed by the employee. Meanwhile, in the case of flexible work arrangements, the employer assessing the employee’s request may also consider their own needs and possibilities.

According to the discussed regulation, the employer, when deciding whether to grant an employee’s request for flexible work arrangements, is obliged to consider the following:

• the employee’s needs, including the timing and the reason for flexible working arrangements,
• the employer’s own needs and capabilities, including the necessity of ensuring the normal flow of work, its organisation or the type of work the employee performs.

While the employer is aware of their own needs and capabilities, the reasons for requesting a particular form of work organisation must be disclosed by the employee. Therefore, when applying for flexible working arrangements, the employee shall indicate not only the child’s details, the period requested and the form of work organisation they have chosen. They should also name the reason for flexible working arrangements, i.e. explain why, from their perspective, the requested form is necessary to reconcile professional activity and child-rearing The separateness of flexible work organisation from other similar regulations is particularly eminent as the added Article 1881 of the Labour Code accumulated legal grounds for requests for certain groups of employees. It is the employee’s choice which legal basis they shall use to apply for the specific work arrangement.

The employer must consider the employee’s request to introduce a flexible work organisation and present their decision within seven days of receiving the application. In doing so, they may indicate a possible date for applying flexible working arrangements different from the requested one.

In principle, the employee should return to their normal working arrangements after the requested flexible work period has expired. However, an employee under the flexible working arrangements may request the shortening of this period at any time. The request should be made and reviewed per the same rules as for the introduction of flexible working arrangements. The employee must therefore state why they wish to return to their regular working scheme sooner, and the employer shall weigh the interests of the employee and their organisation when considering the request.

The employee’s request for flexible working arrangements can neither constitute a reason for the termination of the employment contract nor its termination without notice by the employer. It also must not be a reason to justify preparations for termination or actual termination of employment with or without notice. However, this does not mean that the employment relationship of the employee requesting flexible work arrangements is protected against termination by the employer. The employee’s contract may still be terminated under the general rules. In the event of a dispute, however, the employer shall have to prove that the employment contract termination was motivated by a reason other than the request for flexible working arrangements.

As a side note, it should be noted that a breach of the flexible work organisation provisions constitutes a new offence punishable by a fine.

_{Author: Dr. Iwona Więckiewicz-Szabłowska, attorney-at-law, Head of Legal Support Department, CHUDZIK i WSPÓLNICY Law and Taxes}

This article comes from magazine:
FOCUS ON Business #11 July-August (4/2023)