Remote Work in Portugal: Rights, Obligations and Key Legal Rules

If the period of lockdowns brought about by the COVID-19 pandemic mainly evokes unpleasant memories that we would rather forget and that now seem distant and unlikely to be repeated, the truth is that, surprisingly, it also brought about some positive changes. Among them was the widespread adoption of remote work, a working arrangement that had already been provided for under Portuguese labour legislation but was rarely, if ever, used until then.

Companies whose activities could be carried out remotely were compelled to adopt remote work during that period, and employees were required to work from home. As it turned out, both employers and employees embraced this arrangement. As with everything in life, there is no perfect system, but workers who are able to perform their duties remotely, particularly under a hybrid model, generally prefer it, to the point where it can influence their decision to accept or decline a job offer. Employers, on the other hand, often report lower operating costs and therefore also favour this approach to managing human resources.

Employees generally identify several advantages, including reduced stress, less time spent commuting by public transport or reduced wear and tear associated with private transport, more time for themselves and their families due to the absence of daily commuting, and the opportunity to have lunch at home, sometimes with their family. They also report few, if any, disadvantages, as they continue to feel connected to their employer through online meetings, emails, telephone calls and the occasions on which they attend the workplace in person..

Employers, for their part, mainly highlight the reduction in costs associated with maintaining office premises occupied by employees on a daily basis. The main disadvantage they point to is the difficulty of providing IT support whenever it cannot be delivered remotely.

However, remote work in Portugal did not emerge as a result of the COVID-19 pandemic.

It has been regulated since 2003 under Law No. 99/2003 of 27 August. In 2009, the legal framework governing remote work was amended and underwent its most significant reform in 2021, following the pandemic. It is currently governed primarily by Articles 165 to 171 of the Portuguese Labour Code.

This legal framework applies both to existing employees and to newly recruited workers. In principle, therefore, any employee may work remotely.
Naturally, this presupposes that the nature of the employer’s business allows work to be performed remotely, as remote work relies on information and communication technologies. Consequently, not all professional activities are suitable for this type of working arrangement.

There must be an agreement between the employer and the employee, except in cases where the employee has a statutory right to remote work, which will be addressed below. This agreement must be made in writing. If it is concluded at the time of hiring, it may be incorporated into the employment contract. Otherwise, it must be executed at a later stage, included in the employee’s personnel file, and a copy must be provided to the employee.

The law requires this agreement to include certain mandatory provisions. Among the most important is whether the employee will work remotely on a full-time basis or alternate between remote and on-site work. In other words, the agreement must specify in writing the days and hours during which the employee will work remotely and those during which they will work at the employer’s premises, or whether all work will be performed remotely.

Both the employee and the employer may refuse a proposal for remote work made by the other party. However, while the employee is not required to justify such refusal and cannot be subject to disciplinary action or dismissal as a result, the employer must provide written reasons for refusing the arrangement.

A remote work agreement may be concluded for either an indefinite or a fixed term. Where it is entered into for a fixed term, it may not exceed six months, although it may be renewed for successive periods of the same duration unless terminated by either party.

Regardless of the duration of the remote work agreement, either party may terminate it during the first 30 days of its implementation without the need to provide any justification.

These include situations where the employee is a victim of domestic violence, has requested a transfer to another establishment of the same employer, and has been forced to leave the family home. The right also applies to parents with a child up to three years of age. This entitlement may be extended until the child reaches eight years of age in the case of single-parent families, where only one parent is able to work remotely, or where both parents alternate periods of remote work in 12-month intervals. It also applies, regardless of the child’s age, where the child has a chronic illness, cancer, or a disability.

It should be noted, however, that special rules apply to micro-enterprises (companies employing fewer than ten employees), particularly regarding the extension of this right until the child is eight years old and where both parents work remotely.

There is also a right to remote work, although the employer may refuse the request on compelling business grounds where the employee is a recognised informal caregiver, provided that such status is duly evidenced. This right may be exercised for a period of up to four consecutive or non-consecutive years.

One of the legislator’s main concerns was to ensure that employees working remotely are treated equally to those working on the employer’s premises, both in terms of their rights and their obligations. To make this principle explicit, the Portuguese Labour Code includes a specific provision entitled “Equality of Rights and Duties” (Article 169).

Accordingly, employees working remotely enjoy exactly the same rights as employees working on-site, including the right to professional training, equal remuneration, career progression, social protection, occupational health and safety, protection in the event of work-related accidents, rest periods, annual leave and all other employment rights. In other words, employers are required to treat all employees equally, regardless of whether they work remotely or on the employer’s premises.

The legislator also placed particular emphasis on protecting the privacy of employees working remotely, which is entirely understandable given that, in the vast majority of cases, the agreed workplace is the employee’s home.

Accordingly, employers must respect not only the employee’s working hours and rest periods, but also the privacy and family life of those living with the employee.
Any visits to the agreed workplace must be notified at least 24 hours in advance and require the employee’s consent. Such visits may only be carried out for purposes permitted under the law, such as verifying work-related activities or equipment, and must not interfere with the employee’s privacy.
Employers are prohibited from using any form of image or sound recording, or any other monitoring method that may infringe upon the employee’s privacy.

These rules also give effect to the constitutional rights to privacy and to the protection of the home, as enshrined in the Constitution of the Portuguese Republic.

It is also important to note that the employer is responsible for providing the employee with the equipment and systems necessary to perform their duties remotely. In turn, the employee must promptly inform the employer of any malfunction or technical issue that prevents them from carrying out their work.

The employer is also required to reimburse any additional expenses incurred by the employee as a direct result of working remotely, which would not have arisen otherwise, such as increased electricity costs or higher internet service expenses.

The current remote work framework is designed to protect both employers and employees. However, it should be remembered that these are specific rules governing the conditions under which work is performed remotely. They do not replace or override the general provisions of the Portuguese Labour Code, which continue to govern the employment relationship voluntarily established between employers and employees.

An employment relationship is built on mutual trust, loyalty and good faith between both parties. After all, the success of each party contributes to the success of the relationship as a whole, whether the work is performed on-site or remotely.