New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Until the pandemic, teleworking was used rather infrequently, and most Portuguese employers were not prepared – namely in terms of technology and data storage – to suddenly have their workforce almost entirely and permanently working from home or remotely.

For those reasons, teleworking mainly raised – and continues to raise – concerns regarding the employer’s capacity to ensure that information is protected and that it stays confidential despite being remotely accessed and processed. Remote working enhances security vulnerabilities, which can lead to data breaches.

We would also like to highlight the use of technological solutions that, on one hand, allow employers to exercise their powers of management and control over work performance, but that, on the other, do not violate the general rule prohibiting the use of remote surveillance to control employees' professional performances, or that do not cause excessive restrictions on employees’ private lives.

Last updated on 13/07/2022

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

The analysis of potential issues associated with cross-border remote working depend on whether employees are working in Portugal or abroad and if there are one or multiple employers involved and where they are located.

However, cross-border remote-working arrangements mainly raise issues regarding the definition of applicable law. The correct definition of the applicable law allows for compliance with labour and social security obligations that otherwise, if breached, pose significant risks to employers.

Even if there is an agreement through which the parties choose the applicable law, a set of mandatory provisions of Portuguese labour law would still apply if the work is mainly performed in Portugal, namely in key areas such as termination, health and safety obligations, and insurance for workplace accidents. Failure to correctly identify the applicable law may have serious consequences, for instance, employers may be entirely and solely responsible for all liabilities deriving from a work accident.

Furthermore, if in a given case the Portuguese labour law applies to the cross-border remote-working agreement, employers have to bear in mind that there are some difficulties regarding the definition of workplace and work time in connection with remote working, which can raise challenges when implementing these schemes.

Besides the above, cross-border remote working may also raise questions regarding work permits.

Last updated on 13/07/2022

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Teleworking employees have the same rights and obligations as any other employees, which implies that no reduction in salaries or benefits is admissible, in principle. Under Portuguese labour law, employers cannot reduce basic remuneration unless there is a demotion, which must be, in any case, expressly authorised by both the employee and the Authority for Working Conditions (ACT).

Reducing or cancelling any other payments to remote workers would be deemed discriminatory, and therefore illegal, except for situations where valid grounds could justify it.

Moreover, concerning reducing or suppressing benefits, the fact that benefits have been granted regularly over the years may lead to their qualification as acquired rights of the employees and part of employees’ remuneration, which would mean restrictions on the termination, reduction or alteration of such payments.

During the beginning of the covid-19 pandemic, there was debate over whether employees were still entitled to a meal allowance if they were teleworking, since the cause for payment would cease to exist (ie, employees would no longer be forced to spend money on out-of-home meals). However, the government clarified that, under the special compulsory teleworking regime (whenever the nature of the functions being performed was compatible with it), employees retain the right to a meal allowance, based on the principle of equal rights for on-site employees and teleworkers. It is now fairly and widely accepted that such meal allowances cannot be withdrawn based on the circumstances of teleworking employees.

Last updated on 13/07/2022