Telework has gained stage and relevance, in the world and in Portugal, with the experience brought by the pandemic, where it has had the most significant growth, since its introduction in the Portuguese Labour Code, in 2003.
Telework has invaded daily working life and has changed the paradigm of labour relations as we know them. Accidents at work, in telework, are one of the examples of the challenges this poses in everyday working life.
The Labour Court of Cáceres (Spain), (in Spanish, “Juzgado de lo social de Cáceres”), in a decision dated 26 October 2022, considered the fall of a worker returning to her work desk after going to the bathroom to be an accident at work. The Court understood that no one would question a fall of a worker who, being in a factory, shop or any other place, fell when returning from the bathroom to the actual workplace. Thus, in order to avoid the lack of protection of the teleworker, and as there is no logical and factual reason to remove the legal assumptions, it must be considered a work accident. The Court concluded that the accident occurred when the worker went to the bathroom to satisfy physiological needs, which are common to any worker, regardless of the place where they work. The Court added that in this case there is no interruption of the causal connection, as happens, for example, in the situation in which a worker, during working hours, goes to the kitchen and accidentally cuts himself with a knife.
The Court, seems to rely on the type of injury to remove or maintain the causal connection. Therefore, as the fall of the worker, in this case, was an injury that could be expected to occur in her usual place of work (other than her home), it does not seem that it could not be considered a work accident.
When the concrete case is turned to Portuguese law, what could be the understanding of the Portuguese Courts?
Article 8, paragraph 1 of Law no. 98/2009, of 4th September (hereinafter LAT, which is the “law on accidents at work”), provides that “[a work accident is] that which occurs at the place and time of work and directly or indirectly produces bodily injury, functional disorder or illness resulting in a reduction in the ability to work or earn a living, or death”.
In turn, article 8, paragraph 2, subparagraph b) of the LAT, states that “«the time spent working beyond the normal working period» is that which precedes its beginning, in preparatory or related acts, and that which follows its beginning, in acts also related to it, and also normal or forced interruptions of work.”
Furthermore, article 8, paragraph 2, subparagraph c) of the LAT states that “In the case of telework or distance work, the place of work is considered to be that which is stated in the telework agreement”.
Not being possible to have all the factual information, from the brief factual analysis made available in the decision, it can, hypothetically, be concluded that (i) the domicile is the place of work (contained in the telework agreement); (ii) the trip to the bathroom is taken as a normal or forced interruption of work; and, thus, (iii) the fall occurred during the time and place of work. Therefore, it enjoys the legal presumption of being considered an accident at work.
We await with intellectual curiosity more (national) jurisprudence on these issues, as well as the necessary influence thereof on the future of labour relations.
