Employment and employee benefits in Portugal: overview

A Q&A guide to employment and employee benefits law in Portugal.

The Q&A gives a high level overview of the key practical issues including: permissions to work; contractual and implied terms of employment; minimum wages; restrictions on working time; illness and injury; rights of parents and carers; data protection; discrimination and harassment; dismissals; redundancies; taxation; employer and parent company liability; employee representation and consultation; consequence of business transfers; pensions; intellectual property; restraint of trade agreements and proposals for reform.

To compare answers across multiple jurisdictions, visit the Employment and Employee Benefits Country Q&A tool.

The Q&A is part of the multi-jurisdictional guide to employment and employee benefits law. For a full list of jurisdictional Q&As visit www.practicallaw.com/employment-mjg.

Contents

Scope of employment regulation

1. Do the main laws that regulate the employment relationship apply to:
  • Foreign nationals working in your jurisdiction?

  • Nationals of your jurisdiction working abroad?

Laws applicable to foreign nationals

As a rule, foreign nationals in authorised employment in Portugal have the same rights and duties as Portuguese nationals.

This also applies to foreign nationals seconded to Portugal, except where the contract, or applicable law under the contract, gives more favourable terms.

Laws applicable to nationals working abroad

Portuguese nationals seconded abroad (as defined in the Labour Code) are subject to the Portuguese labour regime, except where the applicable law or contract gives more favourable terms.

 

Restrictions on managers and directors

2. Are there any restrictions on who can be a manager or company director?

Age restrictions

There are no age restrictions on managers or company directors. If permanently employed managers and company directors retire at 65 (the statutory retirement age), but remain actively employed for more than 30 days after both parties have knowledge that the employee has passed retirement age, their employment is:

  • Characterised as a fixed-term employment relationship.

  • Subject to specific rules regarding termination, including notice periods of:

    • 60 days given by the employer;

    • 15 days given by the employee.

The same rules apply to employees who reach 70 without retiring.

Nationality restrictions

There are no nationality restrictions for managers or company directors other than those governing the entry, permanence and exit of foreign employees.

 

Recruitment

3. Are any grants or incentives available for employing people? Do any filings need to be made when employing people?

Grants or incentives

The Government has recently approved legislation which implements measures concerning the grant of financial support to companies hiring unemployed individuals (Employment Stimulation Measures (Estímulo 2012), Regulation No. 45/2012 of 13 February 2012).

A certain percentage of financial support can be provided to companies that hire unemployed individuals in compliance with certain minimum requirements (among other things, the individual's enrolment at the Employment Centre for at least six months and the provision by the employer of professional training).

Subject to the verification of certain requirements, the employer is entitled to financial support corresponding to 50% of the employee's monthly remuneration (with remuneration capped at EUR419.22) (as at 1 August 2012, US$1 was about EUR0.8). Financial support may be increased to 60% in the event that the company hires unemployed individuals under certain conditions (for example, under a permanent employment contract).

Financial support awarded under this regime may be combined with an exemption from, or reduction in, social security contributions payments.

Support will be granted for a maximum of six months and irrespective of the contract's nature (although it is increased in the case of permanent employment contracts).

 

Permission to work

4. What prior approvals do foreign nationals require to work in your country?

Visa

Procedure for obtaining approval. In order for a non-EU country national to obtain an employment residence visa, their potential employer must submit a formal preliminary employment offer to the relevant Employment Centre. If the position is not occupied by a Portuguese or EU candidate within 30 days, the potential employer can ask for a declaration from the Employment Centre allowing for the hiring of a foreign national.

The employer then sends this declaration to the applicant, so that they can file the employment residence visa application at the Portuguese Consulate of their place of residence, together with all the remaining necessary documentation. Applicants must have either (Law No. 23/2007, of 24 July):

  • A signed employment contract or employment agreement with their future employer.

  • Adequate and recognised qualifications and skills for performing their employment activities and a letter from the potential employer formally setting out an interest in hiring them.

After entering Portugal, the employee must:

  • Register with the local Tax and Social Security authorities.

  • Apply for a residence permit at the local delegation of the Immigration Authorities (Serviço de Estrangeiros e Fronteiras) (SEF), after the employer has notified the Authority for Working Conditions (Autoridade para as Condições do Trabalho) of the employment.

Cost. Employment residence visas are subject to an administrative fee of EUR80.

Time frame. The process can take up to 90 days (30 days for the Employment Centre declaration and up to an additional 60 days for the visa from the Portuguese Consulate). The visa is valid for two entries into Portugal and a period of four months.

Permits

Procedure for obtaining approval. Once the employee has registered with the above authorities and the employer has notified the Authority for Working Conditions, the employee must schedule an appointment with the Immigration Authorities in order to apply for the residence permit. Certain documentation required by law must be presented when the application is submitted.

Cost. Employment residence permits are subject to an administrative fee of EUR75.

Time frame. There is no defined duration for the application process, although in practice it takes approximately three months on average.

 

Regulation of the employment relationship

5. How is the employment relationship governed and regulated?

Written employment contract

In general, written employment contracts are not legally required, although they are considered best practice. However, certain types of employment contract must be in writing, including (Labour Code):

  • Promissory employment contracts.

  • Part-time employment contracts.

  • Term employment contracts.

  • Employment contracts with foreign employees.

  • Employment contracts under a commission of services.

  • Contracts for the temporary assignment of employees.

Although, employment contracts do not require execution in writing, the employer must inform the employee of certain terms and conditions, including the:

  • Employer's identity.

  • Place of work.

  • Employee's job category.

  • Date of execution of the contract and date on which it becomes effective.

  • Anticipated duration of the contract.

  • Pay amount and when it is paid.

  • Working times.

  • Applicable collective bargaining agreements (if any).

  • Workman compensation insurance policy number and insurer.

In some circumstances, information can be replaced by a reference to the applicable:

  • Legal provision.

  • Collective bargaining agreement.

  • Company insurance policy.

This information must be given in writing and signed by the employer. The duty of information is considered fulfilled whenever either:

  • This information is included in a written employment contract.

  • A promissory employment contract is executed.

Implied terms

Mandatory rules, such as rules on probationary periods and termination of employment, can be implied as employment terms.

Collective agreements

Collective labour agreements are common in most sectors.

 
6. What are the main points to consider if an employer wants to unilaterally change the terms and conditions of employment?

As a general rule, an employer is not entitled to unilaterally change the terms and conditions of employment, given that any contractual modification requires the agreement of both parties.

However, the employment contract can include a provision which provides that the employer can unilaterally alter certain terms and conditions of employment, within the terms provided for by law.

 

Minimum wage

7. Is there a national (or regional) minimum wage?

The minimum wage for 2012 is EUR485 per month and applies to all full-time employees, irrespective of their age and experience.

Collective bargaining agreements can give specific benefits as well as a minimum salary above the minimum statutory salary, based on the employees' professional category and job level.

 

Restrictions on working time

8. Are there restrictions on working hours?

Working hours

In general, an employee cannot exceed the maximum working periods of (Labour Code):

  • Eight hours a day.

  • 40 hours a week.

Work over these limits qualifies as overtime and gives the employee the right to additional pay and, in some cases, to a remunerated compensatory rest period. The performance of overtime is subject to limits (Labour Code).

Other working time regimes can be agreed, for example, an exemption from normal working hours agreement or an adaptability regime under which the employee's normal work period is defined in average terms over a given period.

Alternative working time regimes can also be set out in collective bargaining agreements.

Rest breaks

The work period must be interrupted by a rest break with a minimum duration of one hour and a maximum duration of two hours, distributed in such a way that the employee does not work consecutively for more than five hours.

Employees are also entitled to a break of at least eleven consecutive hours between two successive working days.

Shift workers

Shifts cannot exceed the normal maximum working periods mentioned above (see above, Working hours) and, in the case of continuous production, they must be organised in a way that allows the employees of each shift to enjoy a day off in each seven-day period.

 

Holiday entitlement

9. Is there a minimum holiday entitlement?

Minimum holiday entitlement

As a general rule, employees are entitled to a minimum 22 working days of holiday per calendar year. This right falls due on 1 January and relates to work performed in the previous year.

Special rules apply in the first year of employment, to contracts with a duration of less than six months, and on termination.

Public holidays

In addition to the personal holiday, the employee is entitled to national public holidays (nine mandatory days and two optional days) (Labour Code):

  • 1 January.

  • Good Friday.

  • Easter Sunday.

  • 25 April.

  • 1 May.

  • 10 June.

  • 15 August.

  • 8 and 25 December.

Collective bargaining agreements or individual employment contracts can also grant the employee two optional "public" holidays: Shrove Tuesday and the local municipal holiday.

 

Illness and injury of employees

10. What rights do employees have to time off in the case of illness or injury? Are they entitled to sick pay during this time off? Can an employer recover any of the cost from the government?

Entitlement to time off

Employees are entitled to time off from work for illness or injury, which is paid by the state social security protection schemes, provided they meet all the eligibility requirements.

Entitlement to paid time off

The state social security protection schemes pay sick pay to employees who are absent from work as a result of illness or injury. The employee can receive sick pay for a total of 1,095 days. Sick pay is calculated based on the employee's remuneration reference for Social Security purposes and varies between 55% and 75% depending on the period of illness.

Recovery of sick pay from the state

If an employer pays the employee the employee's entitlement under the social security legislation, the employer can recover the payment either from the state, or from the employee when they are paid by the state.

In some cases, collective labour agreements provide specific rules covering employee illness or injury.

 

Statutory rights of parents and carers

11. What are the statutory rights of employees who are:
  • Parents (including maternity, paternity, surrogacy, adoption and parental rights, where applicable)?

  • Carers (including those of disabled children and adult dependants)?

Maternity rights

The maternity and paternity regime is extensive and relatively complex. The main maternity and paternity rights are the following (Labour Code).

Working parents are entitled to choose initial parental leave (licença parental inicial) for the birth of a child, which they can share.

If the leave is taken by only one parent, the parent can choose to take either 120 or 150 consecutive days leave. If the parent has 120 days off, 100% of their reference pay (as determined) is paid (by Social Security). If 150 days are chosen, then only 80% of the employee's reference pay is paid over the period.

If parents share initial parental leave, the total leave is extended by 30 days so that they are entitled to 150 or 180 consecutive days, paid by Social Security. If the employees choose to have 150 days off, 100% of the employee's reference pay (as determined) is paid. If 180 days are chosen, then only 83% of the employee's reference pay is paid over that period.

When the initial parental leave is shared, both the male and female employees must inform their employer, at least seven days before the birth, of the start and end dates of each of their leave periods, by way of a joint written statement.

Both mothers and fathers must take an exclusive parental leave (for mothers, licença parental exclusiva da mãe, and for fathers, licença parental exclusiva do pai).

A mother receives:

  • An initial exclusive parental leave of 30 days, which can be taken before the birth.

  • Six weeks mandatory leave that must be taken after the birth.

Fathers must take ten consecutive or non-consecutive working days leave in the 30 days following the birth of the child, of which five must be taken consecutively, immediately after the child's birth.

Fathers are also entitled to an optional leave of ten consecutive or non-consecutive working days, at the same time that the mother is taking her initial parental leave. The male employee must give the employer five days' notice.

Paternity rights

See above, Maternity rights.

Surrogacy

There are no surrogacy rights for employees in Portugal.

Adoption rights

Adoption of a child under 15 years of age entitles the employee to adoption leave (Licença por Adopção) under the same terms as initial parental leave.

Parental rights

Aside from the initial parental leave, parents are also entitled to an additional parental leave to assist a biological or adopted child under the age of six. The leave can be taken in one of the following ways:

  • Extended parental leave for three months.

  • Part-time work for 12 months, with half the normal work period.

  • Alternate periods between extended parental leave and part-time work, within certain limits.

Carers' rights

Carers of disabled children. Parents with a disabled or chronically ill child are entitled to a leave for a period of up to six months, extendable to four years, to provide assistance and care to the child.

Parents with a disabled or chronically ill child under the age of one year old are entitled to a reduction of five hours in their normal weekly work period in order to provide assistance and care to the child.

Once the supplementary parental leave has been used, parents with a disabled or chronically ill child are entitled to work part-time or under a flexible working hours schedule, irrespective of the child's age.

Emergency care. Parents are entitled to be absent for a period up to 30 days per year or to be absent during the full period of hospitalisation in order to provide for immediate and indispensable assistance in the case of sickness or accident of a minor of 12 years of age or less or, regardless of child's age, to a child with disability or chronic illness.

Parents are entitled to up to 15 days per year in order to provide immediate and indispensable assistance in the case of sickness or accident of a child of 12 years of age or over who is part of the employee's household.

 

Continuous periods of employment

12. Does a period of continuous employment create any benefits for employees? If an employee is transferred to a new entity, does that employee retain their period of continuous employment? If so, on what type of transfer?

Benefits created

In general, a period of continuous employment does not create any benefits for employees unless provided for in their employment contracts, company policies or applicable collective labour agreement.

An example of these benefits is a special payment called diuturnidade, which is common in collective labour agreements and typically depends on the employee's permanence in the same job position or category for a specific period of time.

The existence and amount paid to an employee as diuturnidades is taken into consideration when calculating compensation due to an employee in a redundancy (see Question 19).

Consequences of a transfer of employee

If employees are transferred to a new entity in a way that does not entail the termination of their prior employment relationship (for example, through a transfer of business from one entity to another), their length of service with their former employer is retained and recognised by their new employer.

 

Temporary and agency workers

13. To what extent are temporary and agency workers entitled to the same rights and benefits as permanent employees?

Temporary (fixed term) workers

Fixed term employees (that is, employees hired for a limited period of time) are, in general, entitled to the same benefits as permanent employees (for example, regarding remuneration, working hours, holidays and so on).

However, the hiring of temporary employees must be duly justified (Labour Code), is limited to the specific and temporary needs of the employer and cannot exceed 18 months, or two or three years, depending on the circumstances that justified the contract's temporary nature (including renewals).

The employer can terminate temporary employment unilaterally without cause, provided it observes a statutory notice period.

Law No. 3/2012 of 10 January 2012 established a legal regime which allows the extraordinary renewal of fixed-term employment contracts that reach the maximum duration permitted by law until 30 June 2013. Fixed-term employment contracts covered by this law may be subject to two extraordinary renewals, the duration of which may not exceed 18 months in total. The duration of each extraordinary renewal is subject to certain minimum limits. However, fixed-term contracts which are subject to this regime of extraordinary renewal may not remain in force beyond 31 December 2014.

Compensation due in the event of termination is calculated according to the rules applicable prior to and as at the extraordinary renewal.

Fixed term employees will be deemed permanent employees where:

  • Their contracts are converted into permanent employment contracts (either as a result of the term reaching its maximum duration and the contract not being terminated, or as a result of the express will of both parties).

  • The contract is not terminated in observance of the notice periods foreseen by law.

  • The justification that originated the hire is not valid or no longer applies.

  • The contract is not executed in writing.

  • The contract is executed in breach of any other provision foreseen by law, which qualifies it as permanent as a consequence.

Agency workers

Temporary agency workers are subject to a specific regime regarding temporary work. Since they are also hired under an employment contract, they are subject to the same employment rules as other workers, and subject to any particular requirements resulting from the nature of their duties.

 

Data protection

14. What data protection rights do employees have?

The employer cannot demand that a candidate or employee provide information in relation to their private life, health or pregnancy, unless it is strictly necessary to assess the employee's ability to perform the job and the employer provides a written justification (Labour Code).

Where it is justified, the information is provided to a doctor who only communicates to the employer whether or not the employee is capable of performing the job.

Job candidates and employees who provide personal information can control the handling of their personal data, and can request:

  • Information on its content and intended purpose.

  • Its amendment and update.

Employees also enjoy protection under the general legal protection for individuals' personal data (Law No. 67/98, of 26 October, which transposes Directive 95/46/EC on data protection).

 

Discrimination and harassment

15. What protection do employees have from discrimination or harassment, and on what grounds?

Protection from discrimination

An employer cannot discriminate, directly or indirectly, on the basis of (Labour Code):

  • Parentage.

  • Age.

  • Gender.

  • Sexual orientation.

  • Marital status.

  • Family situation.

  • Genetic heritage.

  • Reduced work capacity.

  • Disability.

  • Chronic disease.

  • Nationality.

  • Ethnic origin.

  • Religion.

  • Political or ideological convictions.

  • Union affiliation.

A candidate or employee who alleges discrimination must give their reasons and indicate the employee or employees in relation to whom they consider themselves discriminated. The employer must prove that any differences in the employee's working conditions are not due to discrimination.

Any discriminatory act towards a candidate or employee entitles them to compensation for any damages.

Protection from harassment

Harassment is any undesirable behaviour in the workplace, while applying for a job position or during work or professional training, relating to any discriminatory factors (see above, Protection from discrimination) with the intent or result of affecting the person's dignity or creating an intimidating, hostile, degrading, humiliating or destabilising atmosphere (Labour Code).

Sexual harassment is any undesirable behaviour of a sexual nature, whether verbal, non-verbal or physical, that has harassment as its purpose or result.

A candidate or employee can take a civil action to seek compensation for any act of harassment under the Portuguese Civil Code. In addition, the employer can be subject to an administrative proceeding that can result in its having to pay a fine.

 

Whistleblowers

16. Do whistleblowers have any protection?

Whistleblowing is not expressly provided for in the Labour Code and no specific protection exists.

 

Dismissal of employees

17. What rights do employees have when their employment contract is terminated?

All rules on the termination of employment are mandatory. The employer cannot unilaterally terminate employment without just cause. Just cause is either objective or subjective, depending on the motivation for the dismissal. Just cause is objective when the dismissal is not attributable to the employee but is due to economical reasons, either market, structural or technological (Labour Code) (see Question 19, Redundancy/layoff).

Termination of employment for an objective cause requires either (Labour Code):

  • A collective dismissal procedure.

  • A procedure for an individual dismissal due to the termination of a job position.

  • A procedure for an individual dismissal due to the employee's incapability to adapt.

Subjective just cause arises from a breach by the employee of their legal or contractual obligations that, in light of its gravity and consequences, makes the employment relationship practically impossible. The Labour Code provides a series of examples of subjective just cause and guidelines as to how they are assessed. Termination for disciplinary reasons must equally obey a specific procedure as set out by the Labour Code.

Term employment contracts and employment contracts under a commission of services regime benefit from a more flexible termination procedure different to that above; in these cases, it is possible to terminate without case, within the limits and requirements provided for by law.

Notice periods

There are no notice periods for dismissals resulting from a disciplinary cause. Dismissal is effective once the employee becomes aware of the employer's formal decision to dismiss, which constitutes the last step of the mandatory disciplinary procedure which precedes it.

For information on notice periods applicable under the procedures regarding dismissal for objective reasons, see below, Question 19.

Severance payments

The unilateral termination of an employment contract by the employer entitles the employee to severance pay where there has been termination for objective reasons.

Generally, employees are entitled to compensation for termination equivalent to 20 days' base remuneration plus seniority subsidies (if applicable) for each complete year of service subject to the following caps:

  • The total amount of the base remuneration and seniority subsidies to be considered for the purposes of calculating compensation cannot exceed 20 times the minimum statutory salary (minimum statutory salary is currently EUR485).

  • Total compensation (statutory) cannot exceed 12 times the employee's monthly base remuneration (plus seniority subsidies, if applicable) or, where the cap referred to above applies, 240 times the minimum statutory salary.

The daily base remuneration and seniority subsidies amount corresponds to the monthly base remuneration and seniority subsidies amount divided by 30.

Compensation is pro rated in the event of a fraction of a year.

This regime is then mitigated for employees hired prior to 1 November 2011, as follows:

  • For the period of employment until 31 October 2012, compensation is equal to one month's base remuneration plus seniority subsidies, if applicable, for each complete year of service (with a fraction of a year being pro rated).

  • For the period of employment following 31 October 2012, compensation is calculated as explained above.

  • The total compensatory amount is subject to a minimum of three months' base remuneration plus seniority subsidies.

Specific provisions apply to ensure caps/limits are observed/maintained.

The same general rule applies to fixed term employment contracts as applies for termination due to objective reasons.

For fixed term contracts, this regime is then mitigated for employees hired prior to 1 November 2011, as follows:

  • For the period of employment until 31 October 2012 (or the date of the extraordinary renewal, in the event that it is prior to 31 October 2012), compensation is equal to three days' base remuneration for each month of duration of the contract if it does not exceed six months, or two days' base remuneration for each month of duration of the contract, if its full length is equal to or greater than six months.

  • For the period of employment following 31 October 2012, compensation is calculated in the same way as under the general rule.

  • The total compensatory amount is subject to a minimum of three months' base remuneration plus seniority subsidies.

Specific provisions apply to ensure caps/limits are observed/maintained. Termination for subjective just cause (disciplinary reasons) does not entitle the employee to any severance payment.

Procedural requirements for dismissal

The procedural requirements are mandatory (Labour Code). Where dismissal is related to subjective (disciplinary) just cause, in addition to the need for just cause, the employer must observe a complex procedure involving a disciplinary proceeding and the issuance of a decision by the company on the employee's dismissal.

Dismissal can be deemed unlawful if there are no material grounds and or procedural requirements are not observed, in which case the outcome must be determined through a court ruling.

If the dismissal is deemed unlawful, employees can be awarded:

  • Compensation for damages (pecuniary and non-pecuniary).

  • Reinstatement or payment in lieu, calculated by the court at between 15 and 45 days' base remuneration (plus seniority subsidy if applicable) for each year of service or fraction of a year's service; this cannot be lower than three months' base remuneration (plus seniority subsidy, if applicable).

  • Payment of salaries from the date of dismissal to the date of the final court ruling.

In certain cases, the compensation limits referred to above can be increased (for example, when the employer opposes the employee's reinstatement and the court confirms such a right).

 
18. What protection do employees have against dismissal? Are there any specific categories of protected employees?

Protection against dismissal

Employees can challenge their dismissal: they must take legal action against the employer in order to obtain a court ruling on their unlawful dismissal.

Protected employees

Employee representatives and pregnant or nursing employees enjoy special protection rights regarding termination of employment.

 

Redundancy/layoff

19. How are redundancies/layoffs defined, and what rules apply on redundancies/layoffs?

Definition of redundancy/layoff

Termination of employment for an objective cause requires either (Labour Code):

  • A collective dismissal procedure.

  • A procedure for an individual dismissal due to the termination of a job position.

  • A procedure for an individual dismissal due to the employee's incapability to adapt.

Collective dismissal occurs as a result of termination of employment by the employer operated simultaneously or successively within a three-month period of either:

  • At least two employees if the employer has less than 50 employees.

  • At least five employees if the employer has 50 or more employees.

The grounds for collective dismissal, which must be demonstrated by the employer, are as follows:

  • The closure of one or more sections of, or equivalent structures of, the company/employer.

  • The reduction of the number of employees for market, structural or technological reasons (Labour Code).

Dismissal due to the individual termination of the job position occurs if the collective dismissal threshold regarding the minimum number of employees is not met (that is, the collective dismissal regime is not applicable).

The grounds for dismissal due to the individual termination of a job position are as follows:

  • Objective reasons for termination (based on economical grounds in same terms as those for collective dismissal).

  • Maintenance of the employment relationship is practically impossible (there is no other job position which is compatible with employee's current job category).

  • No fixed-term employment contracts covering the same job functions as those of the job position to be terminated exist.

Procedural requirements

The procedural requirements vary in accordance with the type of dismissal procedure.

Collective dismissal. The procedure involves an information and consultation stage with the employee representatives (Labour Code) or with the employees themselves, a negotiation stage, during which a representative of the Ministry of Employment is also present, and a decision stage following which the employees serve their respective notice periods.

Dismissal due to the individual termination of the job position. The procedure involves an information and consultation stage with the employees' representatives (Labour Code) or with the employees themselves, the intervention (if requested by the employee) of the Authority for Working Conditions in order to confirm the valid application of certain requirements (whose opinion is non-binding), and a decision stage following which the employee serves their applicable notice.

The employer must observe the following minimum notice periods, which vary in accordance with each employee's length of service:

  • 15 days for employees with less than one year's service.

  • 30 days for employees with between one and five years' service.

  • 60 days for employees with between five and ten years' service.

  • 75 days for employees with over ten years' service.

Redundancy/layoff pay

See above, Question 17, Termination for objective reasons.

Any acquired credits owing to the employees (for example, holiday, holiday bonus and/or Christmas bonus) must also be paid.

Failure to place the redundancy compensation, and any other sums due to the employee, at the employee's disposal prior to dismissal taking effect constitutes grounds for unlawful dismissal.

 

Employee representation and consultation

20. Are employees entitled to management representation (such as on the board of directors) or to be consulted about issues that affect them? Is employee consultation or consent required for major transactions (such as acquisitions, disposals or joint ventures)?

Management representation

Employees can set up works councils (comissões de trabalhadores) (Labour Code). Works councils are not mandatory.

Consultation

When there is a works council, it must be notified and consulted and can issue a non-binding formal opinion regarding any management decisions which relate to:

  • Changes in the criteria for determining the employees' professional classification and promotion.

  • Changes in the company or undertaking's place of business activity.

  • Measures that result, or may result, in a substantial decrease to the company's or undertaking's number of employees, worsening of employees' working conditions or changes in the work organisation.

  • The company's winding-up or application for insolvency.

Works councils must also be informed of employment terminations under a collective dismissal or individual dismissal procedure. They can intervene in the negotiation process with the company and must be notified of the company's formal decision.

Major transactions

See above, Consultation.

 
21. What remedies are available if an employer fails to comply with its consultation duties? Can employees take action to prevent any proposals going ahead?

Remedies

A breach of the works council consultation duties (see Question 24) is punishable by fines under administrative proceedings by the Authority for Working Conditions. Failure to comply with the procedural rules regarding the participation of the works council in a unilateral dismissal can render the dismissal void.

Employee action

Employees cannot take any action to prevent proposals going ahead where there has been a failure to consult.

 

Consequences of a business transfer

22. Is there any statutory protection of employees on a business transfer?

Automatic transfer of employees

In the event of a transfer of a part or all of an undertaking or business, existing employment contracts transfer automatically to the purchaser/transferee, provided the criteria set out in the Labour Code are met. These criteria, although with certain particularities, correspond to those given by Directive 98/50/EC amending Directive 77/187/EEC on the approximation of the laws of the member states relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses.

If the transferred undertaking constitutes an economic unit under these rules, the transferee becomes employer of the transferred employees and, among other things, takes on liability for fines arising from administrative proceedings brought by the Authority for Working Conditions for any outstanding breaches of labour obligations (Labour Code).

The transferor is then jointly and severally liable for labour obligations accrued up to the transfer date and for the year following it. The transferor and the transferee must observe a series of information and consultation formalities and requirements (Labour Code).

Protection against dismissal

Employees have the usual protections against dismissal before and after any transfer. If the criteria set out in the Labour Code are fully complied with, the employees cannot refuse the transfer. If the employees refuse to perform work for the transferee, they are in breach of contract and can therefore be subject to disciplinary proceedings with a view to their dismissal.

However, the affected employees can lawfully refuse the transfer where it is not valid. If the transferor then persists in sustaining the existence of the transfer and does not hand over work to the employees, the employees can terminate their employment contracts with just cause and claim compensation under the terms set out under the Labour Code.

Harmonisation of employment terms

A transferee becomes subject to the transferor's rights and obligations under the employment contracts in force before the transfer, and the employees' consent is required for any change to the terms and conditions of employment contained in their employment contracts. Harmonisation of terms and conditions is therefore possible only with the employee's consent. In certain cases, the principle of the non-reduction of the employee's remuneration requires that at least equivalent remuneration terms and conditions are met. The harmonisation process is normally carried out and agreed in written addenda to the employment contracts during or immediately following the transfer.

 

Employer and parent company liability

23. Are there any circumstances in which:
  • An employer can be liable for the acts of its employees?

  • A parent company can be liable for the acts of a subsidiary company's employees?

Employer liability

The employer is liable for damage caused by the employee in the course of their employment, even if the damage was caused in violation of the employer's instructions.

If the employer is liable, it is entitled to seek compensation from the employee. If the employer is also at fault, this compensation is proportional to the degree they are at fault. The degree of fault is presumed to be equal unless otherwise determined.

Parent company liability

A company with which the employer has a reciprocal participation, domination or group relationship can be jointly and severally liable (Article 481 et seq, Companies Code).

 

Health and safety obligations

24. What are an employer's obligations regarding the health and safety of its employees?

Employees have the right to work in healthy, safe and hygienic conditions, which must be guaranteed by the employer. The employer must comply with the preventative principles, guidelines and rules relating to safety, hygiene and health at work, ensuring their organisation and functioning using:

  • Internal services.

  • Inter-company services (requiring authorisation from the Authority for Work Conditions).

  • External services (requiring authorisation from the Authority for Work Conditions).

The employer must inform the competent employment Ministry organisation and communicate the services it has adopted.

The employer must have an internal structure that provides for:

  • First aid.

  • Fire fighting.

  • The evacuation of employees in situations of serious and imminent danger.

The employer must specify responsible employees for these activities. If the company or establishment adopts an inter-company or external service, the employer must designate, in each establishment, an employee with adequate training to represent it and to assist with the adequate execution of activities.

Employees must observe the regulations concerning health, safety and hygiene at work established by law, collective bargaining agreements and the instructions given by the employer.

 

Taxation of employment income

25. What is the basis of taxation of employment income for:
  • Foreign nationals working in your jurisdiction?

  • Nationals of your jurisdiction working abroad?

Foreign nationals

An employee's tax treatment is dependant on their tax residency, irrespective of their nationality, as follows:

  • Tax residents. Tax residents are taxed under the general personal income tax rules. Income tax is levied on the overall income, including income from outside Portugal, on a progressive rate basis (up to 46.5% in 2012). Above €135,000, an additional surcharge is applied at a rate of 2.5%.

  • Non-residents. Non-residents are subject to income tax of 21.5% on Portuguese source income only.

Regime for non-habitual residents. Since 2010, this regime targets non-resident individuals who are likely to establish a permanent or a temporary residence in Portugal.

Provided that they have not been taxed as such during the previous five years and that certain formalities are complied with, non-habitual resident individuals can benefit from this status for a ten-year period, after which they will be taxed under the standard income tax regime.

Income arising from employment or independent personal services obtained in Portugal or abroad but, in this case, not covered by the exemptions in this regime, will be liable to autonomous tax at a special 20% rate, and not to the general and progressive income tax rates applicable to standard residents, provided that it derives from high value-added activities (of a scientific, artistic or technical nature), listed in the Ministerial Order issued for this purpose.

Nationals working abroad

Portuguese tax residents who work abroad are taxed on their overall income regardless of their nationality (see above, Foreign nationals).

 
26. What is the rate of taxation on employment income? Are any social security contributions or similar taxes levied on employers and/or employees?

Rate of taxation on employment income

An employer must withhold a variable percentage of the employee's remuneration under an employment contract as income tax. The percentage depends on the employee's:

  • Marital status.

  • Spouse's income (if any).

  • Number of dependants.

The withholding income tax rates for 2012 range between 0% and 40%.

Social security contributions

The employer must pay a social security contribution equal to 23.75% of the employee's remuneration. Employees must pay a social security contribution of 11% of their remuneration, deducted by the employer.

 

Pensions

State pensions

27. Do employers and/or employees make pension contributions to the government in your jurisdiction?

Contributions paid to the government

Both employers and employees contribute to social security, which covers pensions among other social protection schemes. Under the general employees' social security regime the employer must pay 23.75% over the employee's remuneration and the employee 11%, deducted from their monthly salary.

Taxation of contributions

The contributions are not subject to tax and constitute a deductable cost for the company.

Monthly amount of the government pension

The pension amount payable by the state depends on a series of conditions and requirements based, among other things, on the employee's years of registered remuneration for social security purposes, remuneration level and age.

Supplementary pensions

28. Is it common (or compulsory) for employers to provide access, or contribute, to supplementary pension schemes for their employees? Do these schemes provide pensions, the value of which:
  • Is linked to the employee's salary?

  • Is linked to employer and/or employee contributions and investment return on those contributions?

Linked to the employee's salary

Some employers provide access or contribute to supplementary pension schemes for their employees and this is sometimes prescribed by collective labour agreements and/or by the individual employment contract.

There are no specific rules covering the pensions' value, which may or may not be determined at the start of the arrangement.

Linked to employer and/or employee contributions

See above, Linked to the employee's salary.

 
29. Is there a regulatory body that oversees the operation of supplementary pension schemes?

Regulatory body

There is no regulatory body overseeing the operation of supplementary pension schemes.

Regulatory framework

Where supplementary pension schemes exist, they often operate through funds regulated in accordance with specific rules, for example those for the insurance sector.

Tax on pensions

30. Are any tax reliefs available on contributions to supplementary pension schemes (by the employer and employees)?

Tax relief on employer contributions

Employers' contributions to pension funds, retirement-savings plans or other social security schemes are considered employment income and are subject to income tax, provided they are immediately available to their beneficiaries. However, contributions to schemes that guarantee only pensions, invalidity or survivors are exempt from income tax, provided certain conditions are fulfilled.

Although exempt from tax, the value of these contributions must be included in the income tax statement as it influences the rate applied to other income.

Tax relief on employee contributions

Individual contributions to pension funds and other social security schemes are income tax deductible. Each taxpayer can deduct 20% of the value invested in these schemes from their taxable income, within certain maximum limits. Above a certain annual taxable income, no deduction is applicable.

 
31. Is there any legal protection of employees' pension rights on a business transfer?

Automatic transfer of pension rights

In general, employees are covered by a statutory social security regime under which both employer and employee contribute monthly (see Question 27) so that, among other benefits, the employee receives a pension upon retirement.

A business transfer does not, in principle, affect this regime.

Other protection for pension rights

As a general rule, employee rights are maintained on a business transfer. In cases where this is not possible or proves difficult, alternative new conditions to ensure the employee is not affected by the removal or change of their former terms should be offered by the new employer.

 
32. Can the following participate in a pension scheme established by a parent company in your jurisdiction:
  • Employees who are working abroad?

  • Employees of a foreign subsidiary company?

Employees working abroad

Portuguese resident employees benefit from pension schemes established by a parent company even if working abroad, since their relationship with the company does not change. Accordingly, the benefits referred to in Question 30 will also be available to them.

However, taxation will occur if the employee is no longer a resident for tax purposes.

See Question 25.

Employees of a foreign subsidiary company

Employees of a foreign subsidiary who are not Portuguese tax residents cannot benefit from a pension scheme established by a parent company in another jurisdiction or from the tax reliefs mentioned in Question 30.

Portuguese resident employees of a subsidiary in Portugal of a foreign parent company can benefit from a pension scheme established in Portugal, as well as the tax reliefs mentioned in Question 30.

 
33. Is there any protection provided for pension scheme benefits where the sponsoring employer becomes insolvent? If so, who provides the protection, and how does this operate?

Pensions are normally paid under the state general social security regime applicable to employees, but the law can determine that pensions be granted outside the general social security regime.

Likewise, collective bargaining agreements can provide that the employer contributes towards specific complementary pension schemes. In these cases, protection for pension scheme benefits will depend on the way in which this responsibility is transferred (for example, whether through a group insurance or a pension fund), there being no specific legislation governing the consequences of the insolvency of a sponsoring employer regarding pension scheme benefits.

Depending on the particularities of the pension scheme benefits, in the case of life group insurance either the employer or the employees can withdraw and/or transfer the insured capital. If the pension benefits are managed by a fund, the latter should be terminated and liquidated and, in the case of financial insufficiency, the rights of the employees will, among other things, depend on specific preference rights provided for by law.

 

Bonuses

34. Is it common to reward employees through contractual or discretionary bonuses? Are there restrictions or guidelines on what bonuses can be awarded?

It is common to reward employees through contractual or discretionary bonuses. The employer is free to define the scope and regime of the bonus plans or schemes through which bonuses are paid out to its employees, there being no specific restrictions or guidelines on what bonuses can be awarded, provided they are not discriminatory.

 

Intellectual property (IP)

35. If employees create IP rights in the course of their employment, who owns the rights?

Under the Industrial Property Code (which entered into force in 2003, with subsequent amendments, the latest of which was in 2011), and subject to specific provisions regarding particular types of industrial creations as defined within it, any invention or design developed or made by the employee during the course of their employment, belongs to the employer, provided it relates to the employee's work activity.

However, the employee is entitled to remuneration for inventive activity in accordance with its value or significance, unless otherwise agreed.

 

Restraint of trade

36. Is it possible to restrict an employee's activities during employment and after termination? If so, in what circumstances can this be done? Must an employer continue to pay the former employee while they are subject to post-employment restrictive covenants?

Restriction of activities

Employees are, in principle, confined to the performance of the activity for which they were hired. The specific duties to which an employee is bound can be listed or detailed in the employment contract. The employee is bound by a duty of loyalty towards the employer and can also be subject to a duty of exclusivity and to certain confidentiality obligations.

Post-employment restrictive covenants

The employer's position can be safeguarded after the termination of the employee's contract, within certain limits, by establishing a duty of non-competition for a period after employment (Labour Code). The non-competition clause must:

  • Be set out in a written agreement in the employment contract or in the agreement that terminates the contract.

  • Identify the activity that is considered to have a potentially detrimental effect on the activity of the employer.

  • Grant compensation to the employee for the restriction on their activity. The Labour Code does not establish a rule for calculating non-competition compensation and this should be expressly indicated in the employment contract or in the termination agreement. The compensation can be reduced in cases where the employer has spent significant amounts on the employee's professional training or can vary in accordance with the material or geographical scope of the employee's obligations.

Non-competition clauses cannot last longer than two years, but can be extended for a further one-year period in the case of an employee whose activity involved a high level of trust, or who had access to information that would be of particular value to competitors.

 

Proposals for reform

37. Are there any proposals to reform employment law or pensions law in your jurisdiction?

In alignment with the Memorandum of Understanding signed by the Portuguese Government, the European Central Bank and the International Monetary Fund in May 2011, the Government has committed to presenting a Bill regarding the creation of a compensation fund. The fund or other equivalent mechanism must be operational by 1 November 2012. The employer is obliged to commit to the fund and contribute in terms to be defined by law. Until the fund is set up and regulated by law, the employer is responsible for full payment of the compensation.

The Government is also expected to present proposals/implement measures regarding the following:

  • Assessment of the economic and labour market towards the increase of the minimum wage.

  • Definition of criteria for the drawing up of regulations by the Government that will extend the application of collective bargaining agreements.

  • Collective agreements decentralisation concerning, among other things, the possibility for works councils to negotiate functional and geographical mobility conditions and working time arrangements and reducing the thresholds above which works councils can execute company-level agreements.

 

Online resources

Official Gazette of Portugal (Diário da República Electrónico)

W www.dre.pt

Description. Official website for the publication of national legislation.

Portuguese Immigration Authorities (Serviço de Estrangeiros e Fronteiras)

W www.sef.pt

Description. Official website of the Portuguese Immigration Authorities with information regarding the entrance and stay of foreign citizens in Portugal.

Social Security (Segurança Social)

W www.seg-social.pt

Description. Official website of the social security with information regarding various social protection matters and with forms and applications necessary for the fulfilment of obligations regarding social security institutions.

National Data Protection Commission (Comissão Nacional de Protecção de Dados)

W www.cnpd.pt

Description. Official website of the National Data Protection Commission with several official opinions on these matters.

Authority for Working Conditions (Autoridade para as Condições do Trabalho)

W www.act.gov.pt

Description. Official website of the Authority for Working Conditions which comprises information regarding labour obligations.



Contributor details

César Sá Esteves

SRS Advogados

T +351 21 313 20 00
F +351 21 313 20 01
E cesar.esteves@srslegal.pt
W www.srslegal.pt

Qualified. Portugal, 1992

Areas of practice. Employment law.

Recent transactions. Advising a multinational corporation on the evaluation, measurement, redesign and redefinition of its remuneration and benefits structure, in line with a management decision to achieve specific cost-cutting objectives.

Maria de Lancastre Valente

SRS Advogados

T +351 21 313 20 00
F +351 21 313 20 01
E maria.valente@srslegal.pt
W www.srslegal.pt

Qualified. Portugal, 2001

Areas of practice. Employment law.

Recent transactions. Assisting a multinational corporation operating in the pharmaceutical sector on an organisational restructure following its decision to alter its business model and advising on the redesign and tailoring of its human resources structure to suit its new business needs.

Maria Malheiro Reymão

SRS Advogados

T +351 21 313 20 00
F +351 21 313 20 01
E maria.reymao@srslegal.pt
W www.srslegal.pt

Qualified. Portugal, 2001

Areas of practice. Employment law.

Recent transactions Advising a multinational corporation operating in the pharmaceutical sector on an organisational restructure following its decision to alter its business model and advising on the redesign and tailoring of its human resources structure to suit its new business needs.


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