Government wants to make it easier for companies to refuse remote working

If the government’s proposal is approved, it will be easier for companies to deny remote work to their employees. Today, when jobs are compatible with remote work, if an employee proposes an agreement, the employer can only refuse it by providing a reason. But the draft labour law reform eliminates this requirement.

Remote working has been regulated in the Labour Code for several years, but in 2022, after millions of Portuguese people were forced to try this model because of the Covid-19 pandemic, Parliament tightened it up.

One of the changes made to the legislation at that time was the introduction of the principle that a proposal for a remote working agreement made by the employee “can only be refused by the employer in writing and with an indication of the grounds for the refusal”, if the duties are compatible with remote working (“due to the way they fit into the company’s operations and taking into account the resources available to it”).

This rule was intended to prevent teleworking from being “unfairly denied”, explains lawyer Inês Arruda, a partner at Pérez-Llorca, responsible for the Labour practice area.

However, Luís Montenegro’s government wants to eliminate this principle as part of the ongoing labour law reform. And, according to lawyers interviewed by ECO, this means that it will be easier for employers to refuse teleworking to employees.

“To the question of whether this change makes it easier for employers to refuse remote working, the answer is yes. Except in specially protected cases, there is no longer a ‘quasi-right’ for workers to work remotely”, explains Inês Arruda.

If the Government’s proposal is approved, the refusal of a teleworking agreement proposed by the employee will thus “become free, provided that it is not based on discriminatory grounds”, she points out.

Inês Arruda adds that the repeal of this rule “brings gains in clarity and legal certainty, avoiding disputes over what constitutes ‘sufficient justification'”, since the requirement currently provided for in the law “creates areas of uncertainty and imposes formalities that are difficult to reconcile with many legitimate but unobjectionable decisions, such as team rotation, maintenance of organisational culture or internal commercial strategies”.

Lawyer Gonçalo Pinto Ferreira, coordinating partner of the Labour and Social Security area at TELLES, also points out that today “it is not always easy” for companies to meet the necessary requirements to refuse an employee’s proposal to telework.

Thus, this proposed repeal could, in fact, have a “more significant practical impact”, emphasises the lawyer, who agrees that this change will make it easier for companies to refuse such requests.

However, Gonçalo Pinto Ferreira considers “that this change could generate conflicts and tensions, particularly if the decisions to refuse are not based on objective and verifiable grounds”.

“It is important to note that the repeal of this rule will not eliminate the employer’s special duties, particularly in terms of non-discrimination, so I believe that it will continue to be important, also from a good human resources management perspective, that there are objective grounds for refusing teleworking”, advises the lawyer.

It should be noted that, as a general rule, remote working depends on agreement between the employer and the employee, but there are situations in which the employee can perform their duties remotely, without the company being able to object, provided that the duties are compatible.

These are the “specially protected” cases referred to above by lawyer Inês Arruda. This concerns employees who are victims of domestic violence, employees with children up to three years of age (or up to eight years of age, in cases where both parents telework in successive periods) and employees who have been recognised as non-primary informal carers.

What if the employee refuses remote work?

The law that came into force in 2022 did not only regulate cases in which the employer has the right to refuse remote work. It also defined the rules to be applied in situations where the employee refuses to perform their duties remotely.

Thus, since then, it has been stipulated that when the proposal for a teleworking agreement comes from the employer, “the employee’s opposition does not have to be justified”.

However, as part of the labour law reform currently being negotiated, Luís Montenegro’s government also wants to eliminate this principle.

“Although this repeal does not necessarily mean that the employee is obliged to justify their refusal, it is expected that many companies will interpret this change as requiring the employee to justify why they do not accept the teleworking regime”, warns Gonçalo Pinto Ferreira, who believes that this could make it more difficult for employees to refuse.

Therefore, the lawyer stresses that this change “could potentially create additional tensions in the relationship between the company and the employee”, especially when the argument presented by the employee is not to the employer’s liking.

It should be noted that, today, labour law also makes it clear that an employee’s refusal to telework cannot “constitute grounds for dismissal or for the application of any sanction”. And this rule will also disappear if the Government’s proposal is approved.

Last Monday, in statements to Público newspaper, socialist Miguel Cabrita (who was Secretary of State for Labour when the rules on teleworking were tightened) warned that, without this safeguard, “people may be pressured to accept teleworking when it is in the interests of companies and not their own”.

However, lawyers consulted by ECO assure that even without this principle established in law, there are no risks for workers, since any dismissal would be considered unlawful.

“Refusal of a proposal does not constitute any disciplinary offence or cause for dismissal. Therefore, it is pointless to say ‘refusal cannot constitute grounds for dismissal or the application of any sanction’. The current legal solution is merely programmatic or propaganda”, says lawyer David Carvalho Martins, managing partner at Littler Portugal.

“Even if there is no such rule, in my opinion, it would be difficult to dismiss a worker or impose disciplinary sanctions on them simply because they do not accept a teleworking agreement proposal”, says the TELLES partner.

Inês Arruda also makes this prediction. When questioned, the lawyer points out that workers will still be able to refuse remote working, not least because teleworking will continue to depend on agreement between the parties. “Protection against discriminatory or unfair sanctions continues to be guaranteed by the Constitution and the Labour Code”, she adds.