Portugal: Teleworking: a Fortuitous Event or the Future?

Perhaps the time has come for Labour Law to modernise and be based on, or at least to consent to, different parameters for carrying out and evaluating work.

The mandatory recourse to teleworking during the recent COVID-19 pandemic drew attention to a figure hitherto relatively ignored. Where provision of work in the workplace was the rule, as a result of forced confinement workers and families had to learn to organise differently, and together, at home.

The advantages of working at home are several, and of various types. You save travel time in traffic or on public transport and thereby save the environment (the news reports that the air in cities has never been as clean as when we were all at home).

The stress of the necessary compliance with fixed times to get to work is avoided, since you are already in the place where work starts, without relying on imponderables such as the weather or a road accident. The period of contact with the children increases, with presence at meals and routines (bathing, bedtime) before nonexistent or carried out in a hurry. In general terms, the reconciliation between professional and personal and family life is facilitated.

Besides, it is not only for the worker that teleworking brings (or can bring) advantages, since there are also benefits for the company; just think about cost savings in terms of travel, office area (and its impact on income), utilities (electricity, water, internet). In certain sectors of activity or professions, the place where the work is carried out is relatively indifferent, as long as the contracted result appears done.

That said, teleworking does not only have advantages, even for functions that (to quote terminology we have become used to recently) “allow”. Organising and distributing work is more difficult at a distance, and sharing experiences and exchanging ideas resulting from spatial proximity to colleagues is essential, and enriching. On the other hand, it is in the workplace that we find the materials necessary for the exercise of the profession and, for many, a work environment conducive to reflection. The necessary socialisation required by common workplaces makes us more flexible and makes us (hopefully) more thoughtful and understanding.

From a legal point of view, teleworking poses clear challenges. Remember the doubt, during the pandemic, about whether telecommuting workers maintained their right to a meal allowance, with dissenting voices in one direction and another. Distance work – at home or outside it – makes it very difficult for employers to control compliance with working hours, the work development process and, to a lesser extent, the outcome of the work itself.

On the worker side, the reverse side of the medal for greater flexibility in terms of observing working times is the dissipation of the separation between work and rest, brought about by technological developments, with the problem of the right to disconnect gaining particular acuity. As can be seen, the compression of the worker’s privacy is increased when the workplace and private home are confused (and for this reason the legislator seeks to safeguard it – to the privacy of the teleworker – in Article 170 of the Labour Code).

The questions surrounding working time are particularly demonstrative that Labour Law is designed for a traditional organisation of the company and employment, based on the temporal coincidence and the spatial proximity between the employer’s (or the hierarchical superior to which he delegates his responsibilities) competencies and the responsibilities of the worker.

For this reason, typical instruments of the work relationship, such as the power of direction or the duty of obedience, live poorly – or live worse – with a way of doing work at a distance. The working time / rest time dichotomy itself is called into question in increasingly frequent phenomena such as prevention and on call regimes.

When we arrived here, the phenomenon of widespread teleworking in recent times has proved to be a good opportunity to reflect on the need to idealise work and workers, in terms in which both are usually thought of.

The job is done well when it has quality. For that, it matters little whether it was executed between 9 and 6 (except, of course, commitments at specific times; if the worker has scheduled a video conference with a client, or even with colleagues, his punctuality is not indifferent). Likewise, productivity and quality of work are measured less by the number of hours the worker is available and more by the result of his effort.

Without ignoring the fact that the maximum periods of work were defined based on health dictates and that, from the outset, they serve as a benchmark for employers less sensitive to legal restrictions and workers who are not aware of their rights, or are unable to impose them, we all know that strict interruption of work at certain rigid hours is unrealistic and, if it were carried out, it would be counterproductive.

Often, their failure to comply is dictated by the zeal of the worker himself. The current legislative framework, based on rigid parameters, results in a variety of responsibilities – patrimonial, administrative-order – for companies, perhaps in contexts that they cannot control, assuming a proactive and effective inspection by public services (of the Authority for Working Conditions, namely) for which they do not have the necessary means. The result? Wordy rules, often difficult to reconcile, that are not applied in practice.

In some cases, the legal duty even has archaic content that out of step with current times (that is to say, the duty to register “in a proper book” changes to working hours lasting no more than one week, as set out in Article 217, n . 3 of the Labour Code, up to a maximum of three per year?).

All things considered, the time has come for the Labour Law to modernise and be based – or at least to consent – on different parameters for carrying out and evaluating work. Doing so would have another beneficial effect: traditional models of performance evaluation, based (at least in part) on the number of hours worked, are susceptible to manipulation (the worker who does not record the meal break, or who distorts the period which took time to complete a certain task) and place groups of workers such as women at a disadvantage, with less availability as professional responsibilities are added to parental responsibilities.

For all this, teleworking can make an invaluable contribution. It is not susceptible to apply in all professions or work environments and, therefore, not all are suitable for work in isolation. For this reason, it is not proposed that one of the parties to the employment contract may impose on the other the performance of distance work (a trait that, moreover, the legal regime already accepts, precisely in the case of parental responsibilities). However, for those who find an advantage in this, it is a form of employment contracts of unequivocal interest. At the same time, benefits are combined in terms of time management, reconciling professional and personal life, reducing costs and preserving the environment.

For more information on these articles or any other issues involving labour and employment matters in Portugal, please contact Helena Tapp Barroso (Partner) or Pedro Pardal Goulã (Partner) of Morais Leitão at htb@mlgts.pt or pgoulao@mlgts.pt or visit www.mlgts.pt.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.