Having the best football player in the world is always a good reason to watch the matches of the Portuguese national team in Euro 2016. But is this reason strong enough to put aside the employer’s internal rules and the relevant legal provisions on working conditions?
Holiday and working hours
No special rules exist in this regard, being both employers and employees bound by the general legal provisions or special rules contained in Collective Bargaining Agreements (“CBA”) or in the employment contract:
a) Holiday period is agreed between employer and employee, being the employer entitled to unilaterally schedule it between 1 May and 31 October in the absence of an agreement;
b) The holiday period should be scheduled until 15 April. Since the Euro Cup takes place in June, this means that the employer already knows if employees will take their holidays during the competition;
c) No holiday for individual match days is allowed since employees may only take a minimum of 10 working-day block period. Nevertheless, the employer may release the employees from their duties while the match is played.
Furthermore, and unless it is agreed with the employer, an employee is not entitled to take a 90-minute leave period to watch a given match. Employees are bound to comply with their working period.
Should an employee leave the workplace or his/her station to watch a match without seeking for the employer’s prior approval, the employee breaches labour law.
The same is valid for a “sudden” physical ailment when the employer proves that such condition is false.
In such cases, the employer may consider the absence as unjustified and disciplinary action may be initiated.
In this respect, a relatively recent decision of the Portuguese Supreme Court (dated of 11.02.2015) considered that an employee that left his station to watch a football match on a screen located at a 150m distance, leaving the employer’s assets in the hands of third-parties, breached his duties.
In any case, the court was of the opinion that such breach was not serious enough to justify termination of the employment contract.
As a general rule, employees are bound to perform overtime, notably when the company faces an exceptional increase of work. Watching a football match cannot be considered an acceptable reason for an employee to ask the employer for overtime release.
Use of media during working hours
Nowadays, broadcasting of public events does not necessarily need to be made through television given the variety of technologic means that serve such purpose. In this context, the use of devices like smartphones or tablets when football matches take place during working hours need to be carefully handled.
The impact of such use in the workplace is notorious, especially considering the fact that employees may easily watch the match in their station.
If a given break is not allowed, employees will be in breach of duty should they watch a game using those devices. Furthermore and even if tolerated, work performance may suffer as result of following the matches, notably if employees disregard any specific order or task to be concluded.
Regardless of a case-by-case analysis and despite the fact that Portuguese law does not specifically address the issue, the following principles may apply, in the absence of different rules imposed by the employer:
a) A radio broadcast may be allowed in the background, if work performance does not suffer and colleagues are not disturbed;
b) Television and media will impact the work performance since it will not be possible to reconcile it with the visioning of the match.
Once again, Portuguese law does not have specific provisions in this respect.
Regardless of the above, it is necessary to distinguish three situations:
a) Companies that have a dress code: should the use be prohibited, employees may not lawfully wear any team’s garments or having their face or hair painted;
b) Companies that do not have a dress code: the use of garments may be tolerated unless the employer is entitled to expect a particular appearance based on the corporate identity of the company;
c) In companies where employees are bound to use specific items of clothing or garments- due to the nature of the activity or in compliance with health and safety rules- the use of the team garments may be prohibited by the employer.
The breach of such principles may give rise to disciplinary action.
Alcohol consumption in the context of work performance may only be forbidden or limited for particular occupational groups whose work is incompatible with such consumption. Restrictions to alcohol consumption may be imposed by the employer or be set forth in CBA.
In this sense and assuming a workplace where no restrictions exist, an employee under the influence of alcohol may breach his/her employment duties should his/her condition impact the work performance, disturb the working environment or have negative influence on the persons/companies dealing with the employer.
Internal betting games are prohibited under Portuguese law and employees handling bets may be criminally liable.
Notwithstanding, online betting games are allowed under some circumstances. In any case, such online betting games may not interfere with the work performance.
Works councils are entitled to be consulted by the employer whenever the latter intends to implement an internal regulation. Therefore, and should the matters mentioned above fall within the scope of such regulation, works councils should be consulted.
The breach of this obligation may trigger the application of fines.
Portugal is known by its tolerance. Such tolerance is even more significant when football is the issue.
Normally, employers tend to be understanding when a football match involving the national team is played during working time. Common sense normally prevails, and despite the rules, both employers and employees adjust their interests so that the work is not negatively impacted.