Teleworking regime: alterations introduced

Law 83/2021 of December 6 proceeded to make the 17th amendment to the Portuguese Labour Code, establishing the new legal regime for teleworking, which came into force on January 1, 2022.

The alterations introduced resulted in the following changes:

While under the previous regime the concept of teleworking implied the provision of work “usually” and “outside the company”, the adverb “usually” now disappears, with the legal regime applying even when teleworking occurs in a reduced proportion of the normal period of work, and the more restricted concept of “in a place not determined by the employer” also applies.

On the other hand, with regard to the elements that must be included in the teleworking agreement, in addition to the general requirements that were previously foreseen (identification of the parties, activity to be provided, remuneration, normal working period, establishment to which the worker is assigned, ownership of the work instruments, responsibility for consumption and usage expenses, etc.), it is now mandatory to include the following elements: place where the worker will usually carry out its activity; regularity and method of carrying out in-person contacts; work schedule; professional category; and remuneration, including supplementary benefits. The responsibility for the equipment and respective expenses belong to the employer.

It is also provided that the worker can refuse the proposal to provide telework made by the employer, without the need to justify the refusal, while if the employer refuses the proposal to provide telework made by the worker, this refusal must be substantiated.

With regard to the worker’s right to telework, in addition to workers who are victims of domestic violence, workers who have a child aged up to eight and those who have been recognised as informal caregivers are now entitled to telework, for a maximum period of four consecutive or interpolated years.

The worker is also entitled to compensation for additional expenses that he/she can prove he/she has supported, such as maintenance costs for equipment and systems, energy and internet at speeds compatible with the service’s communication needs.

Regarding the privacy of teleworkers, it is established that visits to the place where the work is performed can only be made during working hours, requiring the worker’s agreement and a prior notice at least 24 hours in advance. In addition, it is expressly prohibited to impose a permanent connection during the working day, as well as to capture image, sound, writing, internet historic or other means that may violate the worker’s privacy.

In terms of safety and health at work, it is expressly provided that, for the purposes of work accidents, it is considered the place included in the agreement and that teleworking is prohibited for activities that involve the use or contact with hazardous substances and materials that are dangerous for the health or physical integrity of the worker, unless carried out in facilities certified for this purpose.

Finally, the duty of abstaining from contacting the worker during their rest period was also introduced, except in compelling situations, which is a rule that is not restricted to teleworking, applying to all other types of work. The violation of this duty constitutes a serious offence, although the law does not establish any criteria for the definition of “contact”, which may raise some interpretative doubts.

By Dr Eduardo Serra Jorge
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Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987.
In his column, he addresses legal issues affecting foreign residents in Portugal.
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