Can the employer contact the employees during the holidays?

The massive use of the teleworking regime during the pandemic period shed light on the problem of workers' availability and permanent connectivity, paving the way for the debate around the already well-known “right to disconnect” to gain expression.

Having recognised the initiatives adopted in other legal systems (e.g. French, Belgian, Italian and Spanish), for some time there was debate as to whether or not Portuguese labour legislation already enshrined a real ‘right to disconnect’.

The issue came to the attention of our legislator at the end of 2021, and our Labour Code now provides that "the employer has a duty to refrain from contacting the worker during the rest period".

The provision of this duty arises in the context of an amendment to the teleworking regime, but it should be emphasised that it is not exclusively aimed at situations involving this model of work provision.

It can therefore be said that Portuguese labour legislation has now, since January 2022, enshrined a general duty for workers to refrain from contact during their rest periods (i.e. non-working time), which includes weekends, holidays, periods of leave, among others.

In other words, with the exception of situations justified by reasons of force majeure, employers must refrain from contacting their workers during rest periods, whether by email, mobile phone or in person.

As this is a duty that falls to the employer, and the emphasis is on this side, it is suggested that companies take the initiative to introduce internal mechanisms to raise awareness of the issue. This could include, for example, incorporating this right into their internal regulations and/or including disclaimers when sending emails or messages stating that a reply is not expected outside of working hours.

What if the employer fails to fulfil its duty to abstain?

From the outset, and except in cases of force majeure, if the employee is contacted by the employer during their rest periods, they are not obliged to respond, and such a failure to respond cannot result in any consequences, particularly disciplinary ones.

In this regard, the law reinforces that any less favourable treatment given to a worker (for example, in terms of working conditions and career progression) as a result of exercising the right to disconnect constitutes discriminatory action.

On the other hand, the employee can always report the situation to the Labour Conditions Authority (ACT), requesting its intervention. Failure to comply with the duty to refrain from contact constitutes a serious offence and the employer is liable to a fine.

Although it is recognised that the practical effects of this legal provision are not yet as tangible as expected, the issue has not gone unnoticed by the supervisory authority, and situations of non-compliance have already been identified.