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Abstention from contact and “after hours” e-mails?

By 14 Janeiro, 2022Janeiro 28th, 2022No Comments

Article 199-A of the Portuguese Labour Code, introduced by the very recent Law 83/2021, gives the employer the “duty to refrain from contact” with the worker during his rest periods. On the other hand, it specifically protects the “exercise of the right to rest periods” by the worker against disciplinary reactions, or other reprisals, that the employer may adopt because the former rejects or prevents contacts attempted by the latter during such periods. 

What the precept is about, of course, is the effectiveness of the right to rest – ensuring that it is actually and usefully taken, without work-related interference. In other words, what the law intends is to avoid “contacts”, attempted by the employer or by superiors, which disturb the rest or create discontinuities in its enjoyment. 

The application of this norm in question is, therefore, all around the concept of “contact”.  

This concept only includes communication acts of the employer that are, by themselves, able to put the employee, during a rest period, facing the dilemma of whether to answer or not. Typically, telephone calls and messages transmitted by SMS, WhatsApp and similar means, which may even include immediate notifications to the recipient, belong to this category. 

On one hand, sending an e-mail during a rest period can only constitute “contact” if the worker wants it. The attitude of the worker regarding the effective exercise of the right to rest is, in this, as in other cases, decisive. If the employee, during his rest period, is constantly checking his e-mailbox and suddenly notices a message from the employer, he will only read it if he wants to – nothing prevents him from ignoring it until the end of that period, nor can the lack of a response even be interpreted as an expression of refusal or rejection of the employee’s request. 

In fact, it is not in the nature of electronic mail to require immediate reading and response – unless they are effectively imposed in its terms. In the latter case, if the dispatch occurs during the rest period, and even if the worker does not open the message, it may be considered that there is a violation of the duty imposed by art. 199-A.   

Little more can be advanced on abstract terms. It is clear that the notion of “contact” can be materialized (or not) in multiple ways; a careful case-by-case analysis is always necessary. 

António Monteiro Fernandes, Of Counsel@ DCM | Littler