Right to Strike: Loss of Pay and Justified Absence?

In reaction to the intention of the XXV Portuguese Government to amend the Labour Code, the main trade union associations called a general strike scheduled for 11 December 2025.

It is therefore necessary to identify the legal consequences of a strike on the relationship between employee and employer.

The Constitutional Framework of the Right to Strike

The right to strike is constitutionally enshrined in Article 57 of the Portuguese Constitution and is considered an unwaivable right, pursuant to Article 530(3) of the Labour Code. This means that an individual employment contract cannot exclude a worker’s right to strike, nor may the employer carry out any act that implies coercion, disadvantage, or discrimination against a worker for joining or not joining a strike.

Regularly Declared Strike: Effects on the Employment Relationship

Suspension of the Employment Contract

A regularly declared strike—that is, one that complies with the statutory notice period and other legal requirements—produces an essential effect on the employment relationship: the suspension of the employment contract.

Suspension entails the maintenance of rights, duties, and guarantees of the parties that do not presuppose actual performance of work. In practice, this means that the worker is released from the duty of attendance and the regime of absences does not apply; however, the worker who participates in the strike will not be remunerated for the days of absence justified by the strike.

Loss of Pay and Maintenance of Rights: A Balanced Regime

The regime set out in the Portuguese Labour Code aims to achieve a neutral balance: the worker is not penalised for joining the strike and seniority continues to accrue as if work had been performed, while the employer is not required to pay remuneration for days on which workers do not report to work because they exercised their right to strike.

Unlawful Strike: When Absence Becomes an Unjustified Absence

Conversely, if a strike is declared or carried out unlawfully, the worker’s absence is treated as an unjustified absence, with the corresponding consequences, including disciplinary implications and loss of pay.

The Importance of the Mandatory Strike Notice

Calling a general strike without complying with the mandatory notice period — which prevents the employer from anticipating workers’ absence or adjusting business operations accordingly — may cause serious harm to companies.

Thus, when there is an intention to exercise the right to strike, trade union associations or the workers’ assembly must notify employers or their associations, as well as the Ministry responsible for labour matters, at least 5 or 10 working days in advance.
The longer period applies to companies or establishments that provide essential social services.

Absences Due to Third-Party Strikes: When a Worker Cannot Attend Work

A different situation concerns absences resulting from the impossibility of attending work due to a strike by third parties — for example, when a worker cannot report to work because of a transport sector strike.

In the absence of an agreement to the contrary, such absences tend to be treated as unjustified, with loss of remuneration, and it is for the employer to assess the justification presented by the worker.

Alternative Solutions: Remote Work, Schedule Adjustments and Holidays

In these scenarios, alternative arrangements may be considered, such as remote work, schedule adjustments, or the taking of holidays, depending on the specific organisation of work and the employer’s agreement.

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