Telework is defined in the Labor Code as “work done with legal subordination, usually outside the company and through the use of information and communication technologies”, provided that the nature of the functions allows it.
With the pandemic situation, transversal to all personal and professional domains, the consequent restrictions to the displacement of workers have led to the massive application of the telework regime. Notwithstanding the fact that it is a matter widely regulated in Western and Northern Europe, it was reflected in the Portuguese legal system on the revision of the Labor Code in 2003.
Telework can be performed by someone who is already part of a certain company or by someone who, having just been hired, is doing so under the cover of the telework regime.
Independently of any of these cases, the existence of an employment contract is necessary, being certain that the telework regime does not bring about a decrease of rights in the sphere of the worker, but rather, an adaptation of these rights to this type of provision of work and to the characteristics that are inherent to it:
1. regime of legal subordination of the worker;
2. provision of work usually outside the company;
3. with the use of information and communication technologies.
All rights regarding training, promotions and career progression are maintained, as well as the regime of work accidents or professional illnesses.
The adaptations, specifically to this regime, have special incidence in certain spheres of rights that the worker is entitled to, namely:
– Right to privacy: when work is carried out under this regime, it is usually done from home. The employee continues to have the right to rest and rest time. On the other hand, the employer may control the activity, as well as the worker’s work instruments.
– The equipment for the performance of the work: on the fringes of this area, it is imperative that the employer provides appropriate training for the equipment and information and communication technologies through which the work will be performed. If nothing is stipulated in the employment contract, it is assumed that the equipment belongs to the employer and it is up to him to ensure and pay for its installation, maintenance and expenses.
– As regards the food subsidy: this will be maintained, in the just measure that the worker continues, in the service of the employer, to have expenses with food. Without prejudice to what may be agreed between employer and worker, either in an employment contract or in company regulations.
Moreover, attenuated that is, in the last quarter of 2021, the pandemic situation, came the Decree-Law No. 79-A/2020 in its latest version, to provide that there is no longer compulsory telework, except for situations that justify it, and which are set out in the law in force.
If, on the one hand, in other legal systems, this issue has been widely developed, on the other hand, and by force of an exceptional pandemic context, in Portugal, in the near future the bill that alters the regulation of telework will be discussed in the Portuguese Parliament, and this issue will be closely monitored by our firm.
The most recent legislative production (Decree-Law 104/2021), following the recent and registered worsening of the pandemic situation, should be noted, in the sense that the adoption of telework, to all companies, regardless of their size or number of workers, is temporarily recommended as of 1 December 2021.
This telework recommendation anticipates, to a certain extent, the mandatory telework period that will be imposed, also temporarily, at the beginning of next year 2022; in this period, the new telework rules will already be in force, which, in good time, will put an end, for example, to any doubts regarding the payment of additional expenses by the employer and the duty of the employer to abstain from contact outside working time.
Thus, one can be sure that the figure of telework is in constant development.