UK 'unlikely' to copy Portugal's new work-life balance laws

Portugal has introduced a new law making it illegal for companies to contact staff outside their contracted working hours. It is one of a range of new measures to regulate home-working and recalibrate the work-life balance of citizens in the wake of the coronavirus pandemic. Businesses will face fines for emailing staff outside their agreed hours and will be required to pay household expenses incurred while their employees work from home, including internet and electricity bills. 

As the Independent reports, the radical new laws were outlined by Portugal’s minister of labour and social security, Ana Mendes Godinho, during the web summit technology conference in Lisbon. She explains how employers will be blocked from monitoring their workers’ productivity outside the office in the interests of safeguarding personal privacy and will be required to organise face-to-face meetings at least once every two months to tackle loneliness among staff. 

The Guardian also reports on this. In an opinion piece, Ana Catarina Mendes, parliamentary leader of the Portuguese Socialist party, explains the thinking. She says: ‘The ongoing digital transition made the need to legislate remote working necessary. The pandemic has made it urgent. We conceived this new legislation before the pandemic began, but it has become even more necessary now: to respond to the perverse, undesirable effects of the rapid expansion of tele-working.’

Anne Sammon has written about this for Outlaw saying how the new laws are a ‘brilliant’ idea but challenging. She says: ‘as we shift into a world of new working practices – flexible, condensed, hybrid – there are some questions around whether this law captures the changes that we are seeing and if it will protect everyone.’

So let’s consider those challenges. Anne joined me by video-link to discuss what Portugal is doing and if the UK might follow suit. I started by asking Anne why she thinks the new laws are challenging: 

Anne Sammon: “I think they're challenging in a number of in a number of ways in that, first of all, I suspect this will come as a big cultural change. So, this idea that you don't contact employees outside of their usual hours is likely to require a bit of a shift in management style in the way that things are done. I think they're also challenging in terms of what that means in individual circumstances. So, we know that there's a carve out, for example, for exceptional cases. So we're all assuming that probably means some sort of emergency that was unexpected that means that you have to contact the employee, but how that actually looks and works in practice is going to be something that's going to evolve over time and where we're just going to have to watch and see what cases appear.”

Joe Glavina: “I can see how it might work well if everyone works 9am to 5pm, and so everyone finishes work at the same time, but that’s not always going to be the case. Likewise when people work  different working patterns. Then it gets tricky.”

Anne Sammon: “Exactly, and I think with the pandemic even more so. We've seen people flex their hours to make them work for their own particular circumstances and I think the challenge with this type of legislation is, if you've got some employees working, say, nine to five and others working earlier, or later, all of those employees are going to have to be thinking about when they email their colleagues and how they get responses from them. So you can see a scenario where one colleague is working nine to five forgets that their colleague finishes at four o’clock, sends an email at four o'clock expecting a response and then doesn't get anything back, and that can cause problems from a business continuity perspective. So I think the challenge is then ensuring that those that have got different working patterns from maybe your core hours aren't somehow being disadvantaged because quite often what we've seen in the past is those individuals being criticised for not being responsive, or not being adaptable, and that then ties into the sort of discrimination risks, if any of those people have protected characteristics, which account for the reasons why they work in a slightly different working pattern.”

Joe Glavina: “It’s interesting how they are aiming to prevent discrimination between home and office workers. That’s pretty radical and very different to what we used to over here. What do you make of that?”

Anne Sammon: “So I suppose at the moment what we have is our protected characteristics and whether or not you've got protection flows from that. So if somebody is working a particular pattern because of childcare responsibilities then you can see that they might be protected in respect of indirect sex discrimination, but that does leave a whole category of people who don't have those protected characteristics who might be working from home, might be working a different working pattern, who are unprotected. Now, one of the misnomers that we sometimes hear is that actually there is protection in terms of the Part time Workers Prevention of Less Favourable Treatment Regulations but actually those only apply if you're doing less hours than the kind of standard week for your employer. If you're just doing those hours differently then you have no protection whatsoever, unfortunately, under the legislation. I think with the way in which working patterns are changing, the way in which the world of work is changing, there is a bit of a gap in the legislation at the moment.”

Joe Glavina: “I can see enforcement being a challenge, Anne. I think a lot of employees will be reluctant to report breaches of legislation for fear of reprisal.”

Anne Sammon: “So I suppose that's a common theme with employment law protections, how they're actually going to be enforced and I think the difficulty with this type of legislation where you say to employees you shouldn't be contacted outside your normal working hours is what are the mechanisms for enforcement? If we are relying solely on that employee escalating things the employee might think, well, I've only been contacted once a week and therefore I don't want the hassle of going through that process, or even if they're being contacted more frequently, they might fear that by flagging this they're somehow going to be disadvantaged, or that that they're going to be criticised for that not being adaptable, not being responsive, point that that we've seen occur in the past.”

Joe Glavina: “Do you think we will have a similar law introduced here, Anne?” 

Anne Sammon: “I suspect it's unlikely that we will have an equivalent law to this implemented in the UK, we're not quite on the same journey as Portugal is it in relation to that piece, but I think the overriding aim of the legislation is admirable. The idea is to focus on the wellbeing of employees and to ensure that they're not being harassed outside of working hours and even without that kind of law we do have obligations around health and safety, making sure that employees are provided with a safe working environment, which includes some of those kind of psychological risks. So employers should actually be considering what practices they already have in place to help with wellbeing and there's also lots of studies out there that show that when some of these types of measures are introduced that actually has a positive impact on productivity which is definitely going to be a positive for employers. So something to embrace.”

Anne has written about this development recently for Outlaw. That’s ‘Portuguese work-life balance laws ‘brilliant’ but challenging’ and is available now from the Outlaw website.”