Out-Law / Your Daily Need-To-Know

Portuguese work-life balance laws ‘brilliant’ but challenging

Out-Law News | 23 Nov 2021 | 10:32 am | 2 min. read

A new Portuguese law making it illegal for companies to contact staff outside their contracted working hours is ground-breaking, but may prove challenging to implement, according to an employment law expert.

Anne Sammon of Pinsent Masons, the law firm behind Out-Law, said the move was “undoubtedly a brilliant and bold step”.

“Legislating measures to protect workers health and wellbeing is powerful and delivers a clear message. However, as we shift into a world of new working practices – flexible, condensed, hybrid – there are some questions around whether this law captures the changes that we are seeing and if it will protect everyone,” Sammon said.

The law was announced by Portuguese labour minister Ana Mendes Godinho at a technology conference in Lisbon in early November.

It will make it illegal for employers to contact employees outside working hours except in emergencies. Employers will also be prevented from monitoring home working, and remote working will be governed by contractual provisions.

Sammon Anne_26 Feb 2020

Dr Anne Sammon

Partner

As we shift into a world of new working practices – flexible, condensed, hybrid – there are some questions around whether this law captures the changes that we are seeing and if it will protect everyone

Businesses will also be forced to pay household expenses incurred while their employees work from home, including internet and electricity bills.

The law also brings in provisions preventing discrimination between home and office workers, and requires companies to make sure their home workers are not left isolated, according to The Independent.

Sammon said: “The key challenge with this type of legislation is how it is combined with flexibility for employees, this provision works well if everyone works 9am to 5pm, and so everyone finishes work at the same time – but what happens where one employee has a flexible working arrangement and so works different hours, for example from 10am to 6pm? If, as a result of that person’s work, they need to contact their colleagues (or those reporting into them) does that contravene the law?”

“Similarly, there may be issues around keeping track of all the different working patterns that employees have to avoid inadvertent breaches. This runs the risk of employers encouraging everyone to have the same working pattern to minimise these types of breaches, which will disadvantage those who need flexibility for whatever reason,” Sammon said.

Sammon said enforcement would also be a challenge, as employees were often reluctant to report breaches of legislation for fear of reprisal.

“For this to work employers need clear internal policies and messaging that enables staff to come forward where this not being followed,” she said.

Sammon said overall the law was a positive move that could be followed by other countries, which would also have to make similar considerations.

Remote working levels have soared since the Covid-19 pandemic. Jurisdictions also legislating for flexible working arrangements include Ireland, which published a National Remote Work Strategy in January 2021 and followed up with a code of practice on the right to disconnect in April 2021.

In an opinion piece published in The Guardian, Portuguese Socialist Party parliamentary leader Ana Catarina Mendes said: “The ongoing digital transition made the need to legislate remote working necessary. The pandemic has made it urgent. We conceived this new legislation before the pandemic began, but it has become even more necessary now: to respond to the perverse, undesirable effects of the rapid expansion of tele-working.”