The Guimaraes Court of Appeal recently held that it was legal for an employer to obtain data using GPS equipment in order to check the number of kilometres actually travelled by an employee against the data provided by the employee. The court's decision was based on the fact that the employer had not engaged in remote surveillance in order to check the employee's professional performance, but rather the number of kilometres travelled.
In a recent judgment the Supreme Court of Justice held that an employer had demonstrated a breach of its duty to provide its employee with sufficient work, which had left him completely inactive for a number of years. The Supreme Court of Justice ordered the employer to pay the employee €50,000 as compensation for non-financial losses as a consequence of the psychological harassment it had inflicted on him.
In a recent judgment, the Supreme Court of Justice held that it was unlawful to dismiss a director in the context of a business reorganisation. The court found that the director's behaviour in humiliating, threatening and disrespecting colleagues and subordinates – which formed the basis of his dismissal – was not severe enough to justify his dismissal for just cause. However, the court decided not to enforce the employee's reinstatement.
The main recent legislative changes to Portuguese employment law include the re-establishment of the 2015 transitional rules on access to early retirement pensions; the creation of a reduced social security contribution rate for certain employers; the reinstatement of certain national holidays; and the raising of the normal age of access to retirement pensions for 2017.
The new and eagerly awaited regime on temporary work has now been approved. It regulates the licensing and operation of temporary work agencies, as well as the contractual relationships between temporary workers, temporary work agencies and user companies.
The recent State Budget Law has introduced measures to encourage companies to recruit employees on permanent contracts. However, employers often overlook other incentives and benefits which are aimed at encouraging them to employ long-term unemployed people, disabled people, first-time job seekers and other people who are at a disadvantage in the labour market.
The Labour Mediation System - the result of a protocol between the Ministry of Justice and various employers' and trade unions' associations - offers an alternative means of resolving litigation issues arising from employment relationships. A one-year trial of the system has begun in Lisbon and Oporto.
In line with the reforming trend towards the redefinition of social protection schemes, the legal regime for unemployment benefit has been revised. New measures affect aspects including entitlement in the event of termination by mutual agreement or dismissal with just cause, the search for a convenient position and early access to old-age pensions.
Employers are free to choose whichever method of candidate assessment they prefer. However, the Labour Code lays down guidelines and orientations with respect to certain aspects of recruitment and employment, including the advertisement of a position, medical examinations of employees and the confidentiality of personal information.
The Labour Code includes a provision which clarifies the uncertainties which frequently arise in assessing the duration of the probationary period for new employees. It identifies periods during which there is no effective provision of work, defining cases where such periods count towards the probationary period and those where they interrupt and temporarily suspend it.
The Labour Code forbids employers from using remote surveillance technology in the workplace to monitor their employees professional performance. There are, however, two exceptions to this rule: the code permits the use of surveillance technology if it protects people or goods, or if specific demands inherent in the employee's activity justify its use.
If an employee is found to have been unlawfully dismissed, her or she may choose between reinstatement or compensation in lieu. Until the Labour Code came into force, an employer was not allowed to object to or otherwise act against an employee's decision to return; an employee's corresponding right to increased compensation in the event of an objection remains untested in law.
In addition to the protection provided by the Personal Data Protection Law, the Labour Code also limits the type of data which the employer may request from the employee. Prior approval for the processing of personal data - in the administration of remuneration, for example - may be subject to a strictly limited authorization.
Recent amendments to the Labour Code redefine employment contracts, alter the provisions relating to collective bargaining arrangements and introduce a number of changes to the regulations on mandatory arbitration, including the right of the minister of employment to order parties to begin arbitration if essential services are at stake.
If an employee is found to have been unlawfully dismissed, her or she may choose between reinstatement or compensation in lieu. Since the introduction of the Labour Code in 2003, an employer has been able to object to an employee's reinstatement in certain circumstances, but aspects of this right - and the employee's right to increased compensation in the event of an objection - remain untested in case law.
As a general rule, an employee's normal working period may not exceed eight hours a day and 40 hours a week. However, employees may be required to work overtime. Portugal's Labour Code defines daily, weekly and annual limits for the performance of overtime work. It also sets out regulations for employers, which cover the recording of overtime work and the rest periods due in lieu.
Employment legislation safeguards the confidentiality and competitive advantage of employers by allowing them to negotiate non-competition agreements with employees. These may run for up to three years and prevent an employee who leaves his or her position from undertaking a professional activity in his or her previous sector of activity, provided that the employee is compensated appropriately.
Groups of companies engaged in diversified activities frequently experience simultaneous decreases of activity in one sector and increases in another. A measure introduced by the Portuguese Labour Code allows an employee to provide his or her professional activity to various employers under a single contract.
The Portuguese Labour Code recognizes the right of employees to continuous training. It specifies that training must be given to 10% of the permanently employed workforce each year. The employees selected are entitled to a minimum of 35 hours a year of certified training, which may be delivered directly by the employer or by an accredited training organization.
The identification of a period of absence from work as justified or unjustified may affect an employee's remuneration, holidays and record of service. It may also have disciplinary consequences. Particular regulations in the Portuguese Labour Code surround an employer's right to verify the medical background to an employee's absence in the case of illness.