Need to miss a few hours of work? Legally, you can do so without a time bank.

Need to leave work early for a personal reason and propose making up those hours the following day? Is it possible to do so without a working time bank arrangement? Ricardo Fernandes Torres, Trainee Lawyer at Dower Law Firm, explains.

As a rule, overtime is considered to be work performed outside normal working hours. However, the law allows an employee to make up for a period of absence without the time worked for that purpose being classified as overtime. This applies even when no working time bank arrangement is in place.

According to Ricardo Fernandes Torres, for this to be possible, the absence must occur at the employee’s initiative, and both the absence and the corresponding compensation must be agreed upon with the employer. Therefore, it is not enough for the absence merely to be authorized. There must also be an agreement regarding how and when the missed time will be made up.

The absence to be compensated must be specific and identified in advance. For example, if an employee requests to leave two hours early, they may agree with the employer to work those two hours at another time. The compensation may take place before or after the absence and may be spread across several days, provided there is a correspondence between the time not worked and the time worked in compensation.

However, this system does not allow for the creation of general hour balances, nor can it be used to compensate for future absences that have not yet been determined or to automatically transfer hours between different periods. It also cannot be used by the employer to reduce working time during periods of lower activity and then require those hours to be recovered later. In such cases, work performed outside normal working hours must comply with the legally applicable rules.

There are, however, limits to the number of hours that may be compensated. On a normal working day, compensation may not exceed two hours. On a weekly rest day or public holiday, it may correspond, at most, to the employee’s normal daily working hours. The applicable rules regarding working time and rest periods must also be respected, including those arising from any applicable collective bargaining agreement.

Although the law does not require a specific form for this agreement, it is advisable to put it in writing, identifying both the absence and the corresponding compensation period. The agreement should be kept on record for five years, and working time records should accurately reflect the periods actually worked and the absence periods.

In summary, an employee may make up for an absence without the compensatory hours being regarded as overtime, provided that the absence is initiated by the employee, there is an agreement with the employer, and the legal requirements and limits are respected.