The main questions on the new Portuguese telework regime

Law no. 83/2021 was published and, in this framework, the telework regime was altered and amendments were made to the Labour Code and to Law 98/2009 of 4 September that regulates the compensation regime for accidents at work and occupational illnesses.

The new telework regime, arising from a long-announced need, but reinforced by the growing use of telework following the pandemic, intends to fill the obvious gaps that the Labour Code had in this regard.

However, several questions and concerns remain unanswered, which the labour and judicial practice will have to address. This diploma materialises important alterations to the regime until now applicable, and enters into force on January 1st, 2022, the first day of the month following its publication.

What is meant by telework?

The provision of work in a regime of legal subordination of the employee to an employer, in a place not determined by the latter, through the use of information and communication technologies.

Some of the provisions of this regime are applicable, insofar as they are compatible, to employees who are not legally subordinated but are economically dependent.

Does telework have to be agreed upon in written form?

Yes, the implementation of the teleworking regime always depends on written agreement, which can be included in the initial employment contract or in any other document that follows it.

Does the teleworking proposal always have to be accepted?

No. In cases in which the proposal is made on the employer’s initiative, the employee can oppose it, without the need to justify it, and his refusal cannot constitute grounds for the application of any sanction, including dismissal.

If the proposal comes from the employee, the employer may also refuse it in some cases, and must do so in written, indicating the grounds for refusal. There are, however, some requests which the employer cannot oppose, such as requests made by employees who are victims of domestic violence, by employees with children up to the age of three, by employees with children up to the age of eight (provided that both parents meet the conditions for teleworking, this is carried out by both parents, in successive periods of the same duration within a maximum reference period of 12 months, or without rotation in the case of single-parent families or situations in which only one of the parents, demonstrably, meets the conditions to carry out teleworking activities).

Are there limits to the provision of work via telework?

The answer depends on the telework agreement that the parties have reached, which should determine, among other elements, the option for its indefinite or fixed duration. In either case, the parties always have the possibility of terminating the agreement within the first 30 days of its execution.

In the case of a fixed duration agreement, this may be concluded for a maximum period of six months, automatically renewable for an equal period, if not terminated, in writing, 15 days prior to its termination, by either of the parties. In cases of indefinite duration, either party may also terminate the teleworking agreement by written notice, which will take effect after 60 days. Upon termination of the agreement, the employee has the right to resume work in person, without prejudice to any other rights recognised to employees with identical functions and working hours.

What information should be included in the teleworking agreement?

I. The regime of permanence or alternation of periods of distance work and presence work;

II. The identification, signatures and domicile or head office of the parties;

III. The place where the employee will usually carry out his work, which shall be considered, for all legal purposes, as his place of work;

IV. The normal daily and weekly work period;

V. Working hours;

VI. The contracted activity, with indication of the corresponding category;

VII. The remuneration to which the employee will be entitled, including complementary and accessory benefits;

VIII. The ownership of the work instruments, as well as the person responsible for their installation and maintenance;

IX. The frequency and method of face-to-face contact.

Although the place of work must be defined in the telework agreement, this may be subsequently changed by the employee, even if by written agreement with the employer.

What about expenses, what is defined?

The teleworking agreement should establish who will acquire the equipment and systems necessary for the performance of the work in this regime and for the interaction between the employee and the employer.

Additional expenses which are proven to have been incurred by the employee as a result of teleworking, which include increased energy and internet costs, should be paid by the employer. These additional expenses may be determined by comparison with the same expenses of the employee in the same month of the last year prior to the application of this agreement, and are considered, for tax purposes, as costs of the employer and not as income of the employee.

Although it does not expressly mention benefits to which the employee is entitled, such as the meal allowance, a reference to “complementary and accessory benefits” that must be included in the telework agreement has been included, and these have been associated with the said allowance.

Regarding other employees’ rights, what changes?

As regards privacy, the capture and use of images, sound, writing and history is expressly forbidden, and work must be controlled by means of communication and information equipment and systems allocated to the employee’s activity, following procedures that the employee is aware of and that are compatible with the respect for privacy. It is also established that any visit of the employer to the telework location, requires a warning at least 24 hours in advance, as well as the agreement of the employee.

Limits of contact with the employee are also established. Thus, although a “right to disconnect” was not expressly approved, the duty of abstention of contact by the employer to the employee who is in a rest period was approved, except in a situation of force majeure. This duty of non-contact is applicable in the relations with face-to-face employees and teleworkers.

And its violation constitutes a serious administrative offence, which can vary between €612.00 and €9,690.00, depending on the company’s turnover, under the terms of article 554 of the Labour Code.

Who monitors compliance with these rules?

Compliance should be inspected by the Authority for Working Conditions, whose visits should be communicated to the employee at least 48 hours in advance and authorised by it.

Should the face-to-face contact of the teleworker with the employer and the team be promoted?

Yes, face-to-face contacts with the teleworking employee should be promoted and it is the employer’s duty, in order to reduce the isolation of the teleworking employee, to ensure face-to-face contacts with it, according to the periodicity established in the agreement, which cannot exceed two months.

It also provides for the possibility of the employee being summoned, even with 24 hours’ notice, to come to the company or other designated location for meetings, training sessions and other situations requiring physical presence.