The Supreme Court, in its ruling of October 20, 2021 (case 128/2021), dismissed an appeal for cassation filed by the labor side in a case where, as a result of the coronavirus pandemic and the state of alarm, the company decided on an irregular distribution of working hours of less than 10%.

The Supreme Court held that in such a situation, the regulation established in Article 34.2 of the Workers’ Statute (ET) should apply, which, in the absence of an agreement, allows the company to distribute irregularly up to 10% of the working hours over the course of the year. Since this percentage was not exceeded in the case at hand, an agreement with employee representatives was not required.

The proven facts in the judgment indicate that “a round of contacts was initiated with various union representatives […] with the aim of exchanging proposals on a potential irregular distribution of working hours for the year.” As no agreement was reached, the company issued two circulars informing employees of the irregular distribution of working hours. In any case, in accordance with Article 34.2 of the ET, an agreement with employee representatives was not required to implement such a measure, which led to the rejection of the appeal.