With the outbreak of the pandemic caused by the global spread of the SARS-COV 2 virus (e.g. COVID-19), the regulation of teleworking has reached the peak of its practical relevance.
The teleworking agreement, under the terms of Article 167(1) of the Labour Code (LC), may have a fixed or indefinite duration.
Under the terms of paragraph 5 of the aforementioned law:
- When the teleworking agreement is terminated within the scope of an employment contract of indefinite duration, or whose term has not been reached, the worker resumes the activity on a face-to-face basis (…).
It is also important to emphasise the following rules resulting from paragraph 4 of the same regulation:
- Either party may terminate the agreement during the first 30 days of its execution.
In addition to the possibility of having a teleworking agreement of a fixed or indefinite duration, it can also be a teleworking agreement that arises during the performance of the employment contract or, on the contrary, an agreement that is simultaneous with the start of the performance of the contract (the ‘original’ teleworking agreement).
Doubt: while the legislative solution doesn’t pose much difficulty when the teleworking agreement is concluded during the course of the employment contract (if the agreement is terminated, the employee continues to perform their duties in person), in the case of the ‘original’ teleworking agreement the issue may not be so simple.
Let’s assume the following scenario:
A worker is hired to work remotely, ab initio, and this is one of the assumptions for the employer to have gone ahead with hiring them. The fact is that this is a fixed-term employment contract, with a duration of 5 months. After the end of the 15 (fifteen) day trial period, and between the 16th and 30th day of the period available to him under the terms of Article 167(4) of the Labour Code to terminate the teleworking agreement, the employee did in fact submit this termination notice.
Questions:
- Will the legislative solution set out in Article 167(5) of the Labour Code apply? In other words, does the worker resume working in person from now on?
- How can this be done if the worker has never worked in person and if one of the conditions of their employment was to work remotely?
- And if the employer doesn’t even have the physical facilities to accommodate the worker?
- Does termination of the teleworking agreement imply termination of the employment contract?
The application of the provisions of Article 167(5) of the LC does not seem to take place in the event of an ‘original’ teleworking agreement. In fact, the provision in question seems to be designed for situations of teleworking after the start of the employment contract and leaves the remaining scenarios without an apparent solution.
Even if we were to imagine that the solution is to pretend that there has previously been face-to-face work, this could prove to be disproportionately painful for the employer, since it will have to pay more for the accommodation of one or more workers on its premises or, at the end of the day, it could find itself obliged to create them…
On the other hand, even for the worker himself, such a solution could prove detrimental, imagining that the location of the employer’s premises could imply his relocation.
Since we believe that the second and third questions have already been answered, and are moving on to the fourth, we conclude that the answer to the latter can only be negative. Article 166(2) of the Labour Code makes a clear distinction between the employment contract and the teleworking agreement, since the legislator presents two hypotheses: i) the written agreement is part of the initial employment contract; ii) it is autonomous in relation to the latter.
In this sense, and considering the imperative nature of the labour contract termination regime, such a solution would be legally inadmissible.
So what happens ‘the day after’ the teleworking agreement is terminated?
Considering that we are faced with a gap, recourse to analogy presents itself as a first possibility.
We have drawn this analogy with the regime laid down in articles 162(2) and 164 of the Labour Code (service commission regime). The solution, as a precautionary measure, could be to expressly state in the employment contract that the employee may remain at the employer’s service in the event of the teleworking agreement coming to an end (Article 162(2) and Article 162(3)(d) of the Labour Code). Once the agreement has been terminated, the system for terminating a service commission, as set out in Article 164 of the Labour Code, would apply by analogy.
A second possibility can be found in Article 343(b) of the same law. The termination of the ‘original’ teleworking agreement, in the event that there is no possibility of the employee ‘resuming’ their work in person, would always result in the expiry of the employment contract due to the supervening, absolute and definitive impossibility of the employer receiving the work (or the employee’s inability to work in person).
It seems to us, unless we have a better opinion, that the solution in Article 167(5) of the CTT, applied without further ado, would lead to the scenario of a forced transition to face-to-face work by the unilateral decision of the party terminating the teleworking agreement, and could even, in the end, and if that party is the employer, jeopardise the right to free choice of profession, provided for in Article 47(1) of the Constitution of the Portuguese Republic.
Rui Rego Soares @ DCM | Littler
