Portugal

Portuguese Employment Law is very strict, ruling the terms of contract and regulating the relation between employees and employers leaving not much for the parties to rule in contract.

This must be bared in mind when considering the following information.

1. What is the definition of an employee?

An employee is a person who gives his or her work under the direct supervision and disciplinary authority of the employer and receives regular remuneration for that work – article 10º of the Labour Code.

2. How do you define an employment contract?

An employment contract is an agreement that rules the relation between an employee and his/her employer. According to the law, the contract can be written subject to a term or with no fixed term. In the first case, the written form is needed, while on the later case it can be just a verbal agreement.

3. What does an employment contract need to contain?

If it is a term contract (subject to a fixed termination date), the contract must be written and must have:

a) name, ID, address and profession of the parties;

b) job description of the employee;

c) remuneration agreement;

d) date of beginning and termination of the contract;

e) legally framed motivation for the term of the contract (according to labour law the fixed term contracts can only be celebrated under a few condition terms fixed by law. Otherwise, they are considered as non term contracts, subject to general rules);

f) place and weekly schedule for the work;

If the contract is not subject to a term of duration it can either be written or not. In this case, the mentioned elements are not mandatory but recommended.

4. Is there a legal requirement to provide an employee with a written contract and if so, when does this have to be provided?

The contract must be celebrated in two copies, one for each party. On top of this, the employer is subject to the duty of information regarding these data:

a) the full identification of the employer and, if it is a company, the structure of its capital share and domination relations;

b) place where the work will be given and legal domicile of the employer;

c) category and job description of the employee;

d) date of celebration of the contract and beginning of its effects;

e) duration of the contract if subject to a term;

f) duration of the holidays or, if not possible to ascertain, the criteria for its calculation;

g) delays for the notice of termination of the contract;

h) value and timing of the remuneration;

i) daily or weekly period of work;

j) labour agreement valid for the regulation of the contract.

5. How would you define a redundancy/economic dismissal?

Redundancy/economical dismissal is not allowed, except in very special circumstances, specially foreseen in the law and subject to a specific procedure.

6. What is the procedure that an employer must follow when making an employee redundant/or dismissing on economic grounds?

The procedure must be subject to the agreement of the Ministry of Employment and is subject to the accountant demonstration that the employer is risking bankruptcy and the dismissal is the way to prevent it and safeguard part of the jobs (there is no total redundancy/economical dismissal).

7. Do you have laws against discrimination, if so, what types of discrimination do you have and how are they defined?

Any discrimination is forbidden. The principle of equal pay for the equal work is imperative.

8. Do you recognise harassment and again, how is this defined?

Harassment is persecuted by law, both labour and criminal. It is considered harassment any behaviour intent to enforce an action from the employee contrary to law and his/her will.

9. What can an employee do about discrimination?

Any employee that is victim of discrimination has the right to go to court and claim for the rectification of the discriminative act.

10. What is an unfair dismissal?

Any dismissal that is not done under the specified motives in the law and does not follow the respect the strict procedure ruled in the Labour Code, in invalid and void and therefore the employee has the right of reintegration or alternatively the right to financial compensation.

11. What can an employee do about an unfair dismissal?

The employee that in unfairly dismissed has the right to go to court or can ask from the court to have a lawyer nominated to represent him in the law case against the employer.

12. If a dismissal is found to be unfair, what compensation can the employee obtain?

In the case of an unfair dismissal, the employee has the right to an indemnity for all the damages suffered due to the dismissal and to be reintegrated in his/her job. And all the remunerations from the moment he was sacked until the day he/she is readmitted must be fully paid. The employee can choose not to be reintegrated in which case the court can arbitrate a compensation to be fixed on a basis of 15 to 45 days remuneration for each year of the duration of the contract.

13. Do you have collective/trade union law?

Collective agreements are very common and several labour ruling is settled through this way.

14. If so, what rights does an employee have?

Any employee working on a sector that is ruled by a collective agreement is subject to such ruling under the general principle of the best rulling, which means that the employee benefits from the best provision either the general labour law or the specific collective agreement.

15. Does the employer have to accept collective/trade union law?

If a collective agreement has been settled by the ruling sector association to which the employer belongs or if the agreement has been homologated by the Labour Ministry, then this agreement is mandatory and has the same status as general law.

16. Can any individual from another country come and work in your country?

Any person from another country can work in Portugal providing he/she abides by the local rules. There is a different situation depending on whether the person if from another member state of the EU of any other.

17. If so, is there immigration controls/work permits that need to be applied for?

Any person coming from outside the EU space must obtain a work permit in order to be able to work in Portugal.

18. What criteria are used for any such applications?

The criteria depend mostly on the treaties ruling relations between the involved countries, but the most important is that the person applying for the work permit must prove that he/she has already a work to sign for and has no criminal record.

19. What does an employer have to do if he receives an application from someone who is not a national in your country for a job?

The employer only has to grant a provisional contract to the employee for him/she to apply for the working permit.

20. What is the tax position for a foreign employee?

The foreign employee is subject to the same taxes as any other employee. There is no fiscal discrimination, except national treaties avoiding double taxation.

21. Are employees protected in the event of a sale or a purchase of a business?

Yes.

22. If so, what rights do employees have and what can they do about it?

When a business is sold the employees keep their work with the new owners of the business.

23. What does the employer have to do in the event of a sale or a purchase of a business which includes employees?

There is no special procedure. The employer only has to register his new employees.

Relogio Simoes & Rocha – Sociedade de Advogados