Has the exception become the rule?

In one of its last acts before the dissolution, the Parliament approved another amendment to the Labor Code, in a bill negotiated between PS, PSD, BE, CDS-PP, PEV, PAN, and the non-registered deputy Cristina Rodrigues. Although this diploma has not yet been promulgated by the President of the Republic, nor has it come into force, it is already possible, without danger of undue anticipation, to make some comments on the solutions enshrined therein.

The changes introduced focus essentially on two matters: the global review of the teleworking regime and the enshrinement of a right to “professional disconnection” or “right to disconnect”. If it is already known that legislative changes follow the evolution of the bases of social life, in this case, this natural course is even more obvious, as it was the pandemic and the obligation, for long periods, of remote work that evidenced the urgency to review the legal framework in those matters.

As for the merits of the quasi-consensus reached in the Parliament, we must spot that the new law corresponds to a compromise solution of balance between the more radical projects of some and moderate solutions of others. In either case, a large part of the changes that reality demanded was integrated, if only to make the rules clearer, as concerning accidents at work (the place of work is now considered for these purposes the place of provision of the activity contained in the telework agreement), in the enshrinement of the hybrid telework/on-site work regimes, in the reinforcement of employees' privacy rights, in the mandatory periodic presence of the employee in the company, or in the employee's provision's compensation criterion in case of increased expenses resulting from teleworking, although in less broad terms than the far left intended, as only expenses related to the acquisition or use of a computer or telematic equipment and systems necessary to carry out the work are compensated.  The legislator wanted to exclude the compensability, for example, of energy increases resulting from lighting or heating or cooling of dwellings due to the employee remaining at home during the working day.

But there is, at least, one rule that deserves great criticism and censure: the one that states that if the contracted activity is, in itself, compatible with telework, the employee may send to the employer a proposal of agreement to render the activity in that regime, and the employer may only refuse it in writing and in a justified manner. Is the legislator trying to consecrate telework as the preferential way of working?! Or, even worse, is it moving towards the ex novo creation of a right to telework, provided that the activity is compatible with this type of organisation? What grounds can the employer invoke for refusal? And who syndicates them? These are all questions that neither the law nor the preparatory work gives a complete answer to. As (almost) always, the legislator is weak and detached from reality, pushing employees and employers into courtrooms.

In fact, at this stage of evolution of Labor Law, we do not see how it cannot be considered a right of the employer to conform, according to business criteria, the way of organization on-site or remotely, even in situations where the activity could be performed remotely. In other words: the employer's basis for rejecting the proposal for an agreement presented by the employee may comprise a laconic “we do not want”, without result, in our view, in any offense to the legal order. However, by demanding justification from the employer, the legislator deviates from this orientation, wanting to "forcefully" favor the telework regime, through the imposition of a duty of objective justification, related to the "company's operating process" or with the “resources available to it”.

We look forward to the practical application of this provision and the difficulties it will generate, including the potential litigation that will arise if the employee does not comply with the employer's decision. On a final note, we are surprised that, in addition to the duty to give reasons for the refusal of the agreement proposed by the employer, there is the possibility for the employee to refuse - without the need to state any reasons - the same agreement, but this time if proposed by the employer. If it is true that we are dealing with an area of law shaped by the favor laboris principle, the truth is that we do not see, in this particular subject, any justification for the difference in treatment now established.