TELEWORK: Portugal decides to change the statutory regulation on telework during a pandemic crisis

Since the outbreak of Covid-19, Portugal was no exception to the huge increase on the telework and other forms of remote working experience. Such increase was chiefly triggered by Government temporary and exceptional rules which, during the lockdown periods, enforced telework for all employees whose tasks were compatible which such way of rendering work.

In a country with no significant previous experience on telework (although since 2003 such regime being expressly foreseen on the Portuguese Labour Code) and with a business fabric chiefly comprised by small and medium-sized enterprises, it goes without saying that the adoption of telework on such a scale was not an easy task and there were a number of issues raised by both companies and employees regarding provision and maintenance of equipment, payment of expenses, changes on employees’ salary, control of the work performed, working hours, just to name a few.  

Notwithstanding, the pandemic background allowed both companies and employees to experience the benefits and difficulties of telework, being expected that such way of rendering work (or at least hybrid forms of work) will increase significantly when – we hope soon – business will return to normal.

It was within this context that the Portuguese Parliament approved a law amending the statutory regulation on telework which encompasses significant burdens for companies. The new rules entered into force on January 1, 2022.

 

  1. What changes with the new law?

The main topics addressed by the new law are:

  • Development of the matters that should be covered on the telework contract;
  • Specific provision regarding the possibility of the telework regime to be proposed by the employee (with a burden for the employee to provide a written justification for a refusal of such proposal);
  • Broadening of the situations in which the employee has a “right to telework”;
  • Development of the matters related to working tools, such as hardware and software to be used by the employee and the respective costs;
  • Development of the principle of equal treatment of teleworkers;
  • Changes to the privacy-related rules applicable to teleworkers;
  • Definition of rules concerning organizations, direction and control of the work;
  • Development of a set of specific duties for employers and employees;
  • A specific rule concerning the right to disconnect.

 

  1. The telework agreement

The telework agreement can be entered into with a current company’s employee or with a new hiring.

The telework agreement must be in writing and it may be included on the employment contract or on a separate document.

It is mandatory that the telework agreement contains:

  • The location from which the employee will regularly render his work which will be considered for all legal effects as his workplace;
  • The normal daily and weekly working time as well as the working schedule;
  • The agreed activity as well as professional category;
  • The employee’s salary (including supplementary or ancillary benefits – if applicable);
  • The working tools ownership as well as the person/entity in charge of their installation and maintenance;
  • The equipment and systems used and the conditions in which they may be used beyond the needs of service;
  • The number of times and the way in which face-to-face contacts shall take place.

 

  1. Is the employee entitled to refuse telework?

Yes, the new law establishes that the employee may refuse the employer’s proposal for the rendering of work under a telework regime without the need to justify it and that such refusal may not lead to the termination of the employment contract or to the application of any disciplinary sanction.

 

  1. Is the employer entitled to refuse an employee’s proposal for the rendering of work under a telework regime?

Apart from the situations in which the employee has the right to move to a telework regime (please see point. 10 below), the law establishes that in the situations in which the employee’s activity is both from a standpoint of the specific tasks carried out by the employee as well as the way in which the employee’s role is included on the company’s structure, and also taking into consideration the material resources the company has available, compatible to the telework regime, the employee’s proposal may only be refused by the employer in writing and stating the reasons underlying such refusal.

The law foresees the possibility of the employer to define in an internal regulation the specific activities and conditions in which the performance of work under a telework regime is admissible.

 

  1. Can the telework agreement be in place for a defined period?

The telework agreement can be executed both with a specific term or for an indefinite period.

If agreed with a specific term, it may not exceed a 6-month period which will be automatically renewed unless either party communicates to the other, in writing, its intention not to renew the agreement up until 15 days before the date of renewal.

In case the agreement was entered into for an indefinite period, either party may terminate it by means of a written communication addressed to the other party. Such communication will become effective 60 days following the date of its reception.

In both cases, the law establishes a “telework trial period”, being that either party may unilaterally terminate the agreement during the first 30 days of its execution.

Following the termination of the telework agreement the employee is entitled to return to a on location position with the same professional category, seniority within the company and rights granted to on location employees with identical scope of work and length of service within the company.

However, the law does not specifically address the situations in which a new employee is hired under a telework regime. The legal framework is clearly designed for on location employees who subsequently enter a telework agreement. Therefore doubts of interpretation regarding the extent to which this rule will apply to new hires are open for discussion.

 

  1. Who is responsible to bear the costs with equipment, systems and communications?

The employer is responsible for making the equipment and systems necessary for the rendering of work and communications available to the employee. The telework agreement must specify if such equipment and systems are directly provided by the employer or purchased by the employee with the company´s agreement on their characteristics and prices.

All additional expenses that the employee must bear as a direct consequence of the purchase or use of the equipment and systems, including increases on energy and communications, as well as the respective maintenance costs are to be fully paid by the employee.

The amounts paid by the company to the employee in order to compensate the additional expenses related to the telework are deemed, for tax purposes, as a company cost and are not considered as employee’s income. This is to say that such amounts will not be subject to Personal Income Tax nor social security contributions.

The law establishes that they are considered as additional expenses the ones corresponding to the purchase or acquisition of goods and services which the employee did not previously owned or benefited from all of those determined by comparison with the employee’s expenditures in the homologous month of the civil year before the one in which the telework agreement is executed.

 

  1. Are there any specific rights and obligations for teleworkers?

Teleworkers have the same rights and duties of other company’s employees with the same professional category or with identical scope of functions regarding, among others, professional training, career development, working time periods, rest periods, paid vacations, health and safety at work, work related accidents or occupational diseases and access to information from employees’ representative structures (unions, works council, etc.).

As far as salary is concerned, teleworkers are entitled to, at least, the same salary they would receive in case they were working on the company’s premises with the same professional category and identical scope of work.

The employer shall respect the employee’s privacy, working schedule and resting periods, providing the employee with satisfactory working conditions both from a physical as well as mental standpoint.

Furthermore, the employer shall:

  • Whenever necessary, provide information to the employee regarding the characteristics and the use of all devices, programs and systems used in the performance of the work;
  • Refrain from contacting the employee during the resting periods;
  • To put in place measures to mitigate the employee’s isolation, namely by promoting with the periodicity established on the telework contract or at least with intervals not longer than 2 months, face to face contact between the teleworker, his superiors and colleagues;
  • Assure and bear the costs of any maintenance or repairs on the equipment or systems used within the scope of the rendering of work, regardless of its ownership;
  • To consult, in writing, the employee before implementing any changes on the equipment and systems;
  • To provide the employee with the necessary professional training specifically regarding the adequate and productive operation of the equipment and systems.

As far as employees are concerned, the new law foresees the following specific obligations:

  • To promptly inform the company about any malfunction or defect on the equipment and systems being used;
  • To comply with the company’s guidelines and instructions concerning information security:
  • To comply with any restrictions or conditions established by the company concerning the use for personal purposes of the equipment and systems provided for the rendering of work.

 

  1. Is the employer entitled to control the work on location?

The law foresees such possibility, being that the visit to the place of work shall be communicated to the employee with a 24-hour prior notice and the employee must agree with the date.

The aim of such visit must be strictly related to the control of the performance of work as well as the use of the working instruments and may only be carried out with the employee’s presence and within the agreed working schedule.

It is strictly forbidden to capture and/or use of any images, sound, browser/computer history or to use any other means of control which may infringe the employee’s right to privacy.

 

  1. Are there any specific rules concerning organization, direction and control of the work?

Any online meetings as well as any specific tasks which require the coordination with other employees in a specific time must take place within the teleworker working schedule and, whenever possible, scheduled with a 24-hour prior notice.

The teleworker is obliged to be physically present in the company’s premises or in any other place designated by the employer in order to attend meetings, professional training sessions or any other situations which require physical presence, provided that he has been requested to attend it with a 24-hour prior notice.

The employer must bear the commuting costs in the part they exceed the normal commuting costs between the employee’s home and the place in which he would normally render work on location.

Any control of the teleworker’s activity shall comply with proportionality and transparency principles, being expressly forbidden to impose a permanent connection during the working hours both through image or sound.

 

  1. In which situations has the employee a right to telework?

Provided that a telework regime is compatible with the employees tasks, an employee is entitled to telework in the following situations:

  • Employee who is a victim of domestic violence provided that (i) a criminal complaint has been filled and (ii) the employee has left the family home;
  • Employees with children up to 3 year of age, provided that the telework is compatible with the tasks carried out by the employee and the company has the necessary material resources;
  • Employees with children up to 8 years of age provided that:

a) The company has 10 or more employees;

b) Both parents are in a position in which they can carry out their work on a telework basis and such right is exercised by both in successive periods of equal duration within a maximum reference period of 12 months;

c) Single-parent families or situations in which only one parent may show evidence that the conditions for the rendering of telework are met.

  • Employees with recognized non-principal caregiver status for a period of up to 4 years either continuous or interpolated. In this situation the employer may not accept the telework provided that it shows that it is not compatible with the employee’s functions or that it does not have the necessary material resources. However, the Portuguese Commission for Equality at Work and Employment must issue its opinion on the matter and, if favourable to the employee’s, the employer may only keep its decision to refuse the telework after obtaining a Court decision ruling that there were grounds for such refusal.

 

  1. The specific rule regarding the obligation of the employer to refrain from contacting the teleworker outside the working hours

The new law expressly states that the employer shall refrain from contacting the employee during the rest periods, exception made to situations of force majeure. Furthermore, the law considers that it will be considered as a discriminatory measure any unfavourable treatment provided to the employee, for instance related to career progression or working conditions, due to the fact that the employee exercised this right not to be contacted.

This rule is open to wide discussion since it does not specify what should be considered as a contact (for instance, does the sending of an email falls under the scope of application of the rule?) nor does it gives a specific framework for employees who are exempted from working hours.

 

  1. What are the challenges/opportunities from companies arising from the new law?

We can spend hours discussing the problems arising from the new law, the lack of clarity of some of its wording, the failure to provide legal solutions for situations in which the telework is not rendered in a single space or even in a single jurisdiction (the law is clearly designed on the premise that the work will be executed at the employee’s home), etc.. We can also say that it was a mistake to legislate on the statutory regulation of telework during a time of crisis. It is without dispute that the Parliament choose to speed up the discussion on this matter in order to tackle some of the issues which were arising from the application of the telework during the lockdowns and not – as it should have – through a thorough and careful consideration of the Portuguese labour market and, chiefly, of the challenges companies will be facing in the near future.

If, as expected, we will continue to witness a significant increase on the number of employees who will perform their work under telework or hybrid models, it is certain that a number of issues which will certainly lead to litigation will also arise. One just has to think, for instance, in the definition of workplace and working hours in relation to accidents at work. Will an accident that takes place when a teleworker returns to home to start is work after leaving is children at school be considered a working accident and therefore covered by the mandatory insurance?

Telework and other forms of hybrid work will certainly entail increasing challenges concerning equal opportunities, gender discrimination, health and safety issues, etc..

The fact is that, if we look at the evolution of Portugal’s economic structure over the last decades, one can clearly see an increasing shift to the services sector which is an ideal field for the implementation of telework of hybrid systems of work. 

Also, within the context of the NextGeneration EU, the Government has announced as one of its pillars, enhancing the digitalisation of enterprises and catching up with the digital transition process, with a global investment of € 650M.

Lastly, there was never a time in which employees were so willing to accept telework regimes, being that it is now widely accepted that, if carried out under appropriate arrangements, telework may significantly help in achieving a better work-life balance.

In light of the above, it is our firm belief that Portuguese companies are facing a window of opportunity to embrace the implementation of telework or hybrid systems of work as one of the ways to reshape the way they carry out business, increase their competitiveness, attract and retain talent.

It is our view that the new law on telework also opens the possibility of reducing employment related cost, namely concerning the companies contributions to Social Security (the lack of a clear definition of what will be considered as new expenses related to the telework which shall be reimbursed to the employee, if carefully explored, may allow companies to introduce salary packages in which part of the amounts paid to the employee will not be taxable).

However, in order to take advantage of such opportunities, it is of paramount importance that companies develop a pre-emptive work, establishing internal regulations and policies concerning telework which thoroughly foresee, among other matters, the type of employees who may enter into this kind agreement, condition for the performance of work, use of the working tools, ways of controlling work, safety of information, etc.. Otherwise, and considering the rules established in the new law, it is most certain that a significant degree of litigation will arise concerning, among others, reasons claimed by companies for refusing employees proposals for entering into telework, salaries, possibilities of controlling the work and/or obtaining evidence for disciplinary procedures again, just to name a few.

 

For further information please contact:

Hugo Martins Braz

[email protected]

Tiago Lopes Fernandez

[email protected]

Contributing Advisors