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In Judgment No. 318/2021, The Constitutional Court Declared the Unconstitutionality, with General Mandatory Force, of the 180-Day Trial Period in Employment Contracts of Indefinite Duration 

by PLMJ Team

Published: June, 2021

Submission: June, 2021

 



Although this issue was debated in the plenary session on 18 May 2021, the Judgment has not yet been published in the official gazette (Diário da República), so it has not yet taken effect.

 

However, the 180-day trial periods of contracts entered into before this declaration of unconstitutionality are not safeguarded. Therefore, in practice, we will have terminations of contracts during the trial periodthat may now be declared to be illegal dismissals.

 

1. The declaration of unconstitutionality with general binding force

 

Several amendments to the Employment Code came into force on 1 October 2019. One of them was the amendment to article 112, which now provides for the possibility of a trial period of 180 days inemployment contracts of indefinite duration for first-time job seekers and the long-term unemployed.

 

This change was not without controversy, because workers in this situation had their trial period increased from 90 days to 180 days. They were equated to workers in positions of high technical complexity, with a high degree of responsibility, whose duties require special qualifications or trust.

 

As a result, a group of 35 members of parliament asked the Constitutional Court to assess and declare the unconstitutionality with general binding force of this rule, among others.

The Constitutional Court held that the existence of a trial period does not deserve constitutional censure. However, it concluded that this doubling of the period "substantially affects the right to jobsecurity" and is disproportionate to the precariousness it creates.

However, only part of the provision was declared unconstitutional and the declaration affects only workers seeking their first job who had been previously contracted on a fixed-term basis for a periodof 90 days or more.

  • This means that the 180-day trial period is valid for long-term unemployed workers, first-time job seekers who have never been hired on a fixed-term basis or who, having been hired on a fixed-term basis, were hired for less than 90 days.

2. Failure to safeguard legal effects already produced

 

The declaration of unconstitutionality with general mandatory force takes effect as from the entry into force of the rule declared unconstitutional. In this case we are referring to Law 93/2019 of September 4, which came into force on 1 October 2019.

 

Therefore, in practice, this law is deemed never to have existed. In other words, the rules that were repealed or replaced will be applied.

 

There are only two possible exceptions:

  • final and unappealable court decisions;
  • if, for reasons of lega l security, equity orexceptionally important public interest, the Constitutional Court had set a more restricted scope for the declaration of unconstitutionality.That is, if it had decided that the declaration of unconstitutionality would only take effect for the future (which did not happen).

As a consequence, under an employment contract of indefinite duration with a trial period of 180 days, for a first-time job seeker who had already entered into a fixed-term employment contract for a periodof more than 90 days, the trial period will be reduced to 90 days.

 

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