Portugal: Changes To The Rules On Remote Working

TOPIC

OLD RULES

NEW RULES

Concept of remote working

It involved working "habitually" "outside the company".

The adverb "habitually" disappears. The rules apply even when remote working occurs in a reduced proportion of the normal working hours.

Instead, the narrower concept of "at a place not determined by the employer" is adopted.

Elements that must be included in the agreement

General requirements of:

• Identification of the parties, the work to be done, pay, normal working hours and establishment to which the employee is assigned;
• Ownership of work tools, responsibility for installation and maintenance of equipment, and consumption and use costs.

In addition to the above requirements, it is mandatory to include:

• The place where the employee will habitually work;
• Frequency and form of face-to-face contact
• Working hours;
• Professional category;
• Pay, including additional and incidental benefits.

The employer becomes responsible for the equipment and related expenses.

Refusal of remote working proposed by the employee

N/A

The employee may refuse the proposal to work remotely made by the employer and does not need to give reasons for the refusal. Any such refusal cannot be a proper ground for dismissal or the application of any other sanction.

This rule was unnecessary, once the employee might in any case be penalised for not accepting an agreement.

Refusal of remote working proposed by the employer

N/A

Any employer's refusal of a proposal to work remotely made by the employee must be justified.

The right of the employee to work remotely

Provided that working remotely is compatible with the employee's role:

• Employees who are victims of domestic violence;
• Employees with children aged up to 3 years old, provided the employer has the resources and means for that purpose.

Besides the situations previously established, employees in the following situations are now entitled to work remotely:

• Employees who have a child aged up to 8 years old¹ ;
• Employees who have been recognised as non-primary Informal caregivers for a maximum period of 4 consecutive or non-consecutive years. The employer may oppose this request when the applicable conditions are not met or on the grounds of overriding requirements for the operation of the company, and it must request an opinion from the Commission for Equality in Work and Employment (CITE).²

Duration of the remote working agreement

While a contract of employment is in force: maximum of 3 years.

Initial agreement: no time limit set.

Agreement made for a fixed term:

• 6 months with the possibility of automatic renewal.

Agreement made for an indefinite period:

• Possibility of terminating the agreement with 60 days' notice.

Expenses

The parties were free to agree on what they wanted.

Employees have the right to compensation for the additional expenses³ they can prove they have incurred: costs of maintenance of equipment and systems, energy and internet at a speed compatible with the communication needs of the job.

Privacy of the remote worker

Any visit to the workplace could only be to check on the work activity and the work instruments, and could only take place between 9 am and 7 pm.

A visit to the workplace can only take place during working hours and it requires the agreement of the employee and prior notice of at least 24 hours.

Checking on the employee's activity

Applicability of general restrictions on the use of remote monitoring.

The imposition of a permanent connection during working hours by means of image or sound is expressly forbidden. The capture of images, sound, writing or history or other means that may violate the employee's privacy is also forbidden.

Collective Labour Regulation Instruments (IRCT)

Remote working was already covered by the material scope of the IRCTs.

Collective agreements must regulate the conditions for remote working. However, there is no sanction for the absence of an agreement.

Occupational health and safety at work

Application of the general rules.

Remote working is forbidden for activities that involve the use of or contact with substances and materials hazardous to the health or physical well-being of the employee, except if carried out in facilities certified for that purpose

There is an obligation on the employer to organise the necessary means to fulfil its responsibilities in terms of health and safety at work, specifically as regards working with display screen equipment, including health examinations before the implementation of remote working and annual examinations to assess the employee's physical and mental aptitude, as well as the adoption of preventive measures as considered appropriate.

Definition of the concept of accident at work

N/A

It is expressly provided that, for the purposes of work accidents, the location is considered to be the one that appears in the remote working agreement.

The importance of this rule has to do with the possible limitation of liability in the event of an accident occurring outside the place identified in the agreement.

Remote working in the Public Administration (civil service)

There was already a reference to Employment Code rules in the General Law on Working in the Civil Service.

The legal rules on remote working apply, with the necessary adaptations, to the central, regional and local Public Administration.

Economically dependent workers

N/A

The rules regarding:

• Responsibility for equipment and systems;
• The provider's privacy;
• Work organisation;
• Refraining from contact during rest periods;
• Duty to prevent isolation;
• Health and safety at work.