16 Mar, 2017
Can the employer change the place of work?
You have probably noticed that many work contracts contain a clause that determines the worker’s usual place of work. Usually, the place of work is the headquarters or the offices or shop where the company carries out its activity.
The Labor Code establishes as a general principle the guarantee of worker’s immobility. This guarantee prevents the employer from being able to change the worker´s work place, except in the cases provided by law.
However, the law also allows the parties themselves to broaden or restrict the situations in which the employer may change the worker’s workplace.
For this reason, more often than not, employment contracts contain a clause expressly stating that the worker accepts that the employer can determine any other place for the performance of his duties. This is legally determined as a clause of geographical mobility. And it is an example of the generalization of the extension of the faculties of the employer in mobilizing the worker to any other place.
Essentially this clause represents the express acceptance of the employee, stated early from the contract, of the change of his place of work outside the situations foreseen in the law as a limitation to this employer´s faculty.
That is, the law provides for a general regime, which – as a corollary of the protection of the worker’s personal and family life – is a limitation of the employer’s ability to change the worker’s workplace. As such, the law lists the situations and conditions under which worker mobilization may occur.
On the other hand, it allows, by agreement of the parties, these situations to be more or less limited, more or less comprehensive. And it is in this context that the clause of geographical mobility inserted in most contracts of employment appears, in the sense of extending the employer´s faculty.
However, this clause expires in 2 years if it is not actuated during this period. After these two years, nothing prevents the clause renewal if the parties so understand.
Nevertheless, one must anticipate that the courts will even so be able to decide that, since the worker´s life is crystallized in the place where he performs his work, and if the employer opted not to actuate the clause for year, doing it so might constitute abuse of rights.
1 – Can the employer during the term of this clause indiscriminately change the worker´s workplace?
Yes, indeed, the employee’s acceptance of such a clause implies precisely that, during its term, the employer can determine that the employee performs his duties in any place that he determines (observing, of course, criteria of legality, as well as the other legal guarantees, such as conditions of hygiene and safety, etc.) even and regardless of this change causing the employee serious loss.
However, the employer will always have to bear the additional expenses associated with the dislocation, which vary depending on whether the transfer is permanent or temporary. But we’ll get there in a minute.
2 – And after the clause expiring, or if there was no provision for geographical mobility clause? Can the employer change the worker´s workplace?
Yes, it can, being this faculty subject, however, to the limitations imposed by law.
In other words, the general regime applies.
3 – What is the general regime.
The change of the work location may be permanent or temporary.
The definitive individual transfer is the modification of the work place of a given worker, without any return to the original work place.
The temporary one is the one in which the worker will return to his usual place of work.
Whether temporary or permanent, the worker geographical mobility depends on the following requirements:
(I) the existence of a legitimate interest of the company
It will be necessary for the company’s decision to be based on objective criteria of rational management and not on futile or personal grounds, such as persecutory or penalties intent.
The concept of legitimate interest is an abstract concept that will ultimately be defined, to a very great extent, by the parties, and to be verified casuistically. In other words, it is only on a case-by-case basis that one will be able to define whether this interest may or may not be considered legitimate by courts – excluding cases of manifest illegality, such as changing the workplace to a desk mounted under the bridge, for example. .
(II) No serious loss to the employee
It is also necessary that this amendment does not cause serious damage to the employee.
Again an abstract concept that can only be casuistically evaluated.
From the change may result a significant increase in travel time, the impossibility of assisting sick relatives or the difficulty of access to certain hospital treatments, a substantial change in a personal and family life program, the impossibility of attending a course, etc… situations hat do not return to simple inconveniences or inconveniences like doing more 10 km per day, or take another 30 minutes a day in travel, or because the gym was at the door of the previous place.
And neither the additional costs may be considered as a loss, since they will be borne by the employer.
4 – Received, under the general regime, the communication of alteration of the workplace, what can the worker do?
In the definitive transfer, if the alteration represents serious loss to the Worker:
- He/she may terminate the contract under fair cause, and be paid the compensation determined in accordance with art. 366º of the Labor Law Code.
- In the case of an individual transfer, that is to say, not due to the change or extinction of the establishment, he/she may still oppose the mobility, informing the intention of maintainig the contract bond at the current place of work.
However, this will only be the case if there is serious prejudice in the above terms.
In the temporary transfer the worker will return to the work place after a certain period of time.
As a rule, the temporary transfer can not exceed 6 months. However, before imperative requirements of the enterprise, the employer may place the worker in another place for a longer period.
In this case he/she will not be able to terminate the contract, but being an individual transfer, causing serious loss, he/she can oppose, maintaining the bond in the initial place.
However, this can only occur if before situations of serious loss to the employee as defined in the terms above, what can only be analyzed under the light of the specific context of the impact on the worker´s personal life.
4 – Does the employer intend to change the work place, whether under valid mobility clause or in the general regime, which procedure should be observed?
The employer must notify the worker, in writing, of the transfer decision, with the following notice:
- Of 8 days, in case of temporary transfer;
- 30 days in the event of a definitive transfer.
The communication must state the reasons for it and indicate the expected duration of the transfer, stating, where appropriate, the existence of a geographical mobility clause.
5 – And who has to bear the expenses in case of transfer of the work place ?
Whether under a geographical mobility clause or under the general regime, it is the employer who will bear the costs as a result of increased travel costs and relocation.
In the case of a temporary transfer, the accommodation costs will also be borne by the employer during the time of the change.
Lastly, it should be noted that this entire regime can be secluded by an Instrument of Collective Labor Regulation.
In conclusion, the law allows the parties to determine the place of work and to define it in the contract.
It also allows the parties to determine that the employer can not transfer the worker from the contractually fixed place or that he can transfer him independently of the verification of the requirements of the general regime.
Prior to Law 7/2009 amending the Labor Code, there was no time limit for geographical mobility clauses. The change occured in order to consolidate the worker’s immobility guarantee, especially considering his/her position at the time of hiring.
Recently, in September 2016, the Parliamentary Group Bloco de Esquerda presented a Bill to eliminate the “possibility that, by mere contractual stipulation, the legal requirements of functional or geographical mobility of the worker are removed.”
The reasons for this project are the generalization of the clause of geographical mobility in the sense of extending the faculties of the employer to the detriment of the workers immobility garantee.
This project is still in Parliament, and nothing has been changed yet.
From my point of view, I do not think it is inappropriate to predict that the parties can agree on a clause of this nature, being balanced that it´s validity can be maintained only for a certain time gap since hiring.
It will, moreover, be a balanced solution to the interests of both parties, especially in view of companies with more than one establishment or which are in a position to expand their activities and may need to restructure their human resources.
In this way, they would excuse themselves from an almost certain judicial demand to fill the abstract concepts that define the general regime, during a reasonable period of time in which the worker will certainly not have consolidated their personal and family life due to the place of work. Provided, of course, this issue has been duly discussed and informed at the time of hiring.
Thank you and see you next week. We will talk about the new data protection regime.