Judgment of the Court of Appeal of Lisbon of 2013-05-08
Working Schedule - Change
In this judgment, the Court of Appeal of Lisbon ruled on the question of whether or not the employer can unilaterally change the working schedule of an employee.
To begin with, the judgment observes that it is for the employer to define the working schedule of its employees, within the legal boundaries, after consultation with the works council or, in the absence of such council, with the inter-union committees, trade union committees or trade union delegates, concerning the definition and organisation of the working hours.
With regard to the change of the working schedule, the court clarified that the employer can unilaterally change the working schedule of the employees, unless:
- The working schedule is expressly set out in the employment contract, that is, where the employee was specifically hired to work within certain working schedule;
- The working schedule was later agreed between the parties and expressly for the employee;
- According to an applicable collective regulation instrument (IRCT), the working schedule may only be modified by agreement.
In this respect, the Court of Appeal of Lisbon added that, as with the establishment of the working schedule, the change of the same too, requires consultation with the works council, which is mandatory but not binding, while consultation with the employee is not mandatory.
Considering that in this case it was not claimed that the employee’s working hours was set out in the employment contract, that according to the applicable collective bargaining agreement the working schedule can only be changed by agreement, that the employee was hired expressly for a specific working schedule or that such was agreed on by the parties during the performance of the contract, the Court of Appeal of Lisbon decided that the change of working schedule was lawful, rejecting the appeal brought by the employee and confirming the decision appealed against in full.