Portugal: The Right to Disconnect Q&A

The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.

There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.

With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in Portugal.

This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.

1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?

In Portugal, the right to disconnect was explicitly recognized and became effective on January 1, 2022. The legislation mandates that employers must refrain from contacting employees during their rest periods, except in cases of force majeure. This right includes the employee's ability to remain offline and not respond to professional communications outside working hours. This development responded to the increasing prevalence of remote work, especially highlighted during the COVID-19 pandemic, when the boundaries between work and personal life became blurred. The right to disconnect aims to protect employees' mental health and well-being by ensuring clear demarcations between their professional and personal time.

2. Is the right governed by legislation, a code of practice or both?

The right to disconnect in Portugal is governed by legislation. It is embedded within the Labor Code and within certain collective bargaining agreements. This legal framework is supported by broader international and national legal texts, such as the Universal Declaration of Human Rights, the Constitution of the Portuguese Republic, and the European Convention on Human Rights. These documents collectively ensure that individuals have the right to reasonable working hours, paid holidays, rest, and leisure, reinforcing the legislative foundation of the right to disconnect.

3. Do all employees have a right to disconnect?

In Portugal, the right to disconnect applies to all employees, including those working remotely. The legislation ensures that employers must refrain from contacting employees outside of their working hours, allowing employees to enjoy uninterrupted rest periods. Excluded from the specific application of this telework regime are public sector employees. However, it is considered that they maintain the right to disconnect since it derives from the right to rest, which applies to all labour relations.

4. Are all employers obliged to provide the right to disconnect?

All employers in Portugal are obliged to provide the right to disconnect. This obligation requires employers to abstain from contacting employees during their rest periods, except in emergencies. The duty is emphasized for remote employees, acknowledging the unique challenges they face in maintaining work-life balance.

5. What are the obligations on the employer?

Employers in Portugal must refrain from contacting employees during their designated rest periods, defined as any time that is not working time. This obligation is crucial to safeguarding employees' mental health and ensuring a clear separation between work and personal life. Additionally, employers must ensure that employees are not subjected to less favourable treatment in terms of working conditions or career progression due to exercising their right to disconnect. Employers must also avoid disturbing employees during their rest periods. The responsibility to ensure non-disturbance lies with the employer, emphasizing a 'duty of non-connection'.

6. What happens if an employer fails to comply with its obligations?

Non-compliance with the obligation to provide the right to disconnect can result in administrative penalties for employers in Portugal. These penalties may include fines and other administrative sanctions. Moreover, if the conditions for harassment are met, the violation of the right to disconnect could potentially be considered as a form of harassment. The cultural pressure to remain connected, driven by job security and career progression concerns, exacerbates this issue. Additionally, discrimination against employees for exercising their right to disconnect can lead to severe penalties.

7. Have there been any reported cases on the right to disconnect?

Yes, there have been reported cases, but they were only integrated into other behaviours of moral harassment and not directly and exclusively related to the violation of the employer’s duty to refrain from contacting employees during their rest periods.

The introduction of the legislation addresses growing concerns about the impact of remote work on employees' mental health and wellbeing. Legal recognition of the right to disconnect highlights the importance of regulating work-life balance in the modern workplace. The cultural expectation that employees should always be available, even outside working hours, complicates the practical enforcement of this right. Employees often feel pressured to stay connected due to fears of job loss or missing out on career advancement opportunities. This underscores the critical need for such legislation to protect employees' wellbeing.

8. What are the benefits and challenges of the right to disconnect in practice?

The right to disconnect offers significant benefits, including improved mental health and wellbeing for employees, clearer boundaries between work and personal life, and protection of physical and moral integrity. It promotes a healthier work environment and helps prevent burnout.

However, challenges include managing international work environments with different time zones, where employees may receive communications outside their working hours. Cultural challenges also persist, as there is often a negative perception of employees who do not remain contactable during their rest periods. The fear of job loss or hindrance to career progression often deters employees from exercising their right to disconnect. Additionally, the reliance on digital technologies blurs the lines between work and personal time, making it difficult to enforce this right effectively.

9. Has the right to disconnect had a significant impact on the workplace since it came into force?

Since its enactment, the right to disconnect has significantly impacted the workplace by raising awareness about the importance of mental health and uninterrupted rest periods. The psychological benefits are evident as employees feel more supported in maintaining work-life balance. However, practical challenges, such as coordinating across different time zones in international companies, remain. Additionally, cultural attitudes towards constant availability continue to present challenges in fully realizing the benefits of this right. Employees may hesitate to disconnect due to fears of negative repercussions on their job security and career progression. Overall, the legislation has prompted discussions on creating healthier work environments and emphasized the need for clear boundaries between professional and personal time.

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

As of today, there are no specific upcoming changes detailed regarding the right to disconnect in Portugal. However, the evolving nature of remote work and continuous discussions surrounding mental health and work-life balance suggest that further regulatory adjustments could be considered in the future. The increasing prevalence of remote work and the challenges it presents, such as managing communication across different time zones, may prompt lawmakers to refine and expand existing regulations to address new issues as they arise. Additionally, as awareness of the importance of mental health in the workplace grows, there could be more emphasis on creating and enforcing policies that protect employees' right to disconnect. Finally, collective negotiation between unions and employers’ associations may lead to more detailed regulation on the right to disconnect in collective bargaining agreements.

AUTHORS FROM CUATRECASAS
Rui Vaz Pereira, Partner
Liliana Almeida de Moura, Principal Associate