Portuguese Law no. 83/2021 of 6 December 2021 introduced some changes to the teleworking (remote working) regime in the Labour Code, which came into effect from 1 January 2022.
Most of these changes aim at standardising teleworking and affording ‘workplace protections’ to employees who telework, ensuring the Labour Code is updated accordingly.
- Teleworking can be permanent or can alternate with periods of distance work and face-to-face work (a mixed or ‘hybrid’ regime) but must be agreed beforehand. The teleworking agreement must designate the usual place of work, working hours, remuneration and benefits, and frequency/manner of face-to-face contact.
- Telework agreements can be for fixed or indefinite duration. Fixed duration agreements cannot exceed 6 months, though will automatically renew if neither party declares termination in writing 15 days before expiry. Indefinite duration agreements can be terminated by either party in writing, within 30 days of the agreement commencing, or with a notice period of 60 days following commencement.
- Teleworkers are to enjoy the same rights and duties as any company employee with the same function or category, specifically with regard to training, career promotion, limits on working hours, rest periods, paid vacations, protection of health and safety at work, treatment of work accidents and occupational diseases, and access to information from the representative structures of workers, including the right to receive, at least, the same remuneration they would receive if working in-office/face-to-face, with the same category and identical function.
- Employers are responsibile for providing teleworking equipment and systems necessary to carry out the work, and the teleworking agreement must specify whether such is provided directly by the employer or purchased by the employee (with employer agreement on costs). In such cases the employer must compensate the employee for all additional expenses incurred as a direct consequence of acquisition or use of such systems, including energy costs and data network installation (if required for speed compatibility with employer systems). This also includes maintenance costs for said systems. Said reimbursements are not considered part of the employee’s salary.
- Employee opposition to a telework agreement proposed by the employer does not require substantiation – and employee refusal cannot be used as a reason for dismissal or grounds for sanction. However, if a telework proposal comes from the employee, employer refusal must be substantiated.
- The employer has the duty to refrain from contacting the employee during their designated rest period, except in situations of force majeure.
- Any employee with a child aged up to three years or who is a victim of domestic violence has the right to telework, when compatible with the employment activity and employer has resources to provide the necessary equipment. Only micro-enterprises (companies with less than 10 employees) can oppose such a request from an employee. Further, such rights may be extended to children up to eight years should certain conditions be met.
- Distance work meetings and work requiring precise timing should be scheduled with 24 hours advance notice and within the employee’s normal working hours. Should the teleworker be required to attend the company’s premises (for meetings, training, etc.), at least 24 hours notice must be given and the employer is required to bear the cost of travel if the location is not the normal place of work.
Further, the teleworking regime requires the employer to:
- Inform the employee on the characteristics of and how to use all devices, programs and systems adopted to monitor their activity at a distance;
- Refrain from contacting the employee during the rest period;
- Strive to reduce the isolation of the employee, promoting face-to-face contact with superiors and other employees frequently, and at periods not exceeding two months;
- Guarantee or defray maintenance and repair actions for equipment and systems used in teleworking, regardless of ownership;
- Query the employee, in writing, before introducing changes to the equipment and systems used in the provision of work, in the functions assigned, or in any characteristic of the contracted activity;
- Provide employees with the training they may need for the proper and productive use of equipment and systems that will be used by them in teleworking.
While, the employee must:
- Inform the company in a timely manner of any malfunctions in the equipment and systems used in the provision of work;
- Comply with the employer’s instructions regarding the security of the information used or produced during the contracted activity;
- Respect and observe the restrictions and conditions that the employer defines in advance, with regard to the use for personal purposes of the equipment and work systems provided by the latter;
- Comply with the employer’s guidelines on health and safety at work.
Moreover, the employer is required to undertake health and safety examinations before the teleworker begins work and on a subsequent annual basis, to assess the employee’s physical and mental aptitude for the activity. The employee will provide access to the place where they work to professionals designated by the employer who are responsible for the assessment and control of the conditions of safety and health at work under the terms of the law, within a period previously agreed, and within working hours.
The legal regime for the treatment of accidents at work and occupational diseases applies to teleworking, considering the place of work chosen by the employee as the place to habitually carry out their activity.
This telework regime established in the Labor Code can only be waived by collective bargaining agreement or individual employment contract which offers more favorable conditions to employees.
Law No. 83/2021 entered into force on 1 January 2022.
If you’d like more information on any of these points or have queries about teleworking within Portugal, contact our Portugal Team.