Employers assigning employees to shifts also need to take into consideration the needs of female employees and male employees looking after children; this obligation arises pursuant to Section 241 para 1 of the Czech Labour Code (Act No. 262/2006 Coll., as amended, hereinafter the “LC”).
According to Sec 241 para 2 LC, where
- a female or male employee looking after a child who is under 15 years of age, or
- a pregnant female employee, or
- an employee who proves that he or she, mostly on his or her own, takes long-term care of a person who is, under the Act on Social Services (Act No. 108/2006 Coll., as amended), considered to be a person dependent on another individual's assistance and such dependency is classified by grade II (dependency of medium seriousness), grade III (serious dependency) or grade IV (full dependency),
and this employee requests to work only part-time or requests some other suitable adjustment to her or his weekly working hours, the employer will be obliged to comply with such request unless this is prevented by serious operational reasons.
The question of working hours adjustments for above-mentioned categories of employees and interpretation of the so-called “serious operational reasons” has been raised several times by the Czech Supreme Court (cf. decisions of the Czech Supreme Court, Ref. Nos. 21 Cdo 1561/2003 and 21 Cdo 612/2006). A Supreme Court decision of substantial importance had been published under Ref No. 21 Cdo 1821/2013 and the interpretation of Sec 241 LC contained therein can be summarized as follows:
- Part-time work or other corresponding adjustment of employee´s weekly working hours constitutes the right pertaining to the above specified categories of employees, and as such it is enforceable by courts if the employer does not comply voluntarily;
- If an employer rejects the employee´s request for adjustment of his/her weekly working hours, or if the employer cancels his previous decision on weekly working hours adjustment, the employer will be obliged to prove in court the existence of serious operational reasons which prevented him/her from complying with the employee´s request;
- “Operation” is interpreted as fulfilment of employer´s tasks or activities, especially tasks which are connected to production or provision of services, as well as other similar activities which are carried out on the employer´s behalf and at his own risk (responsibility);
- With regards to (non-)existence of serious operational reasons on the employer´s part, the crux lies in evaluating the impact on the employer´s operations if the employee´s working hours were adjusted in comparison with the employee working normal full-time hour (i.e. standard weekly working hours);
- The adjustment could then be denied only in cases where the employer´s operations were seriously paralyzed, disturbed or endangered;
- The decisive moment for evaluation of employer’s needs (and resulting decision) is the date of employee´s request.
When deciding on the seriousness of the impact / operational reasons, the following circumstances should be especially taken into consideration:
- the nature of the employer´s operation;
- number of employees working for the employer and possibilities to substitute;
- levels of employees´ remuneration; etc.
Generally speaking, the higher the number of employees, the higher the possibility of their substitution, and, the more plentiful resources available to employers, the easier compliance with employee´s request for this kind of working hours adjustment.
In case of Ref. No. 21 Cdo 1821/2013, the Czech Supreme Court has sustained that it is also possible to hire another employee on part-time basis (or an employee working on basis of an agreement on work performed outside an employment relationship, as stipulated in Section 74 et seq. LC), in order to satisfy the employee´s request for adjustment (reduction) of his/her working hours and to cover the employer´s needs for work, with respect to the fact that not all operational “problems” would constitute a rightful reason for rejecting an employee´s request to adjust working hours; denial is limited only to very serious and demonstrable operational reasons.