On 5 November 2021, the Portuguese Parliament approved the Substitute Text of Bills authored by various different parties. This text introduces various modifications to the telework regime, in the form of amendments and additions to the Labour Code, as well as to Law 98/2009, of 4 September – the law that regulates accidents at work and occupational illnesses. It is also foreseen that this new law will come into force on the first day of the month following its publication. It is therefore expected that it will enter into force still in the current year.
Regarding the most significant developments arising from this regime, it should be noted, first of all, that in order for telework to be considered as such, the employer cannot predetermine the place where it will be exercised.
It should also be noted that it is now expressly provided that, if the proposal of a telework agreement is at the initiative of the employer, the employee may simply oppose it, without having to justify such opposition, which cannot be used as grounds for dismissal by the employer or as grounds for the application of any sanction.
Another development included in the present regime is related to the increased costs of energy and network installed at the (tele)workplace at a speed compatible with the service communication needs, as well as the maintenance costs of the referred equipment and systems. In fact, if the employee is able to prove such costs, they should be duly covered by the employer. Not only that, this compensation will also be due immediately after the employee incurs the said expenses and these will be considered, for tax purposes, as a cost for the employer and not an employee’s income. This regime also provides what is to be understood as additional expenses for this purpose, defining them as «(…) those corresponding to the acquisition of goods and/or services which the employee did not have before the conclusion of the agreement referred to in article 166 [agreement for the provision of telework], as well as those determined by comparison with the employee’s homologous expenses in the same month of the last year prior to the application of that agreement.»
There is also the right to telework for parents with children up to the age of 8, if both parents meet the conditions for telework, by fulfilling other requirements, and for single-parent families or situations where only one parent meets the conditions for telework. However, this right will not apply to employees of micro-companies.
Furthermore, the right of the employee to rest and to «disconnection» has been established, and the employer must refrain from contacting the employee during the rest period. It has also been defined as discriminatory any unfavourable treatment – namely in terms of working conditions or career progress – given to an employee exercising this right.
These amendments undoubtedly aim to create a regime compatible with the global impact that telework has had after the spread of the Sars-Cov-2 virus, with the legislative bodies seeking to protect the employee and to enable the access to telework in activities that allow it. However, as in many other labour matters, the exercise of some of these rights and the proof of some of these requirements may reveal to be of special difficulty.
Moreover, the bill does not seem to provide for a transitory rule, so the regime applicable to telework contracts entered into before the date of entry into force of this law is not certain, namely regarding the duration of telework regimes entered into before the new law, where the period foreseen for employees previously employed by the employer was 3 years.