HR Future: Legal Highlights

Sham Outsourcing

Judgment of the Supreme Court of Justice of 11.02.2026

Case No. 6260/19.6T8STB.E1.S1

In this judgment, the Supreme Court of Justice addresses the application of the presumption of employment in contexts of business cooperation, such as outsourcing, warning of the risks of an uncritical use of this legal mechanism. The Court emphasises that the merely formal verification of (at least two) indicators, without a careful assessment of the underlying economic and relational reality, may lead to legally incorrect conclusions.

From the Court's perspective, the probative value of employment indicators must be weighed with particular caution in these contexts, given that certain elements may assume a different meaning than usual or present an ambivalent nature. By way of illustration, the Court observes that certain aspects traditionally associated with employment such as the performance of work at the beneficiary's premises, the use of its equipment or compliance with its operating hours frequently correspond to logistical requirements inherent to the business cooperation relationship itself and should not be automatically interpreted as signs of legal subordination.

Faced with these challenges, the Supreme Court of Justice advocates an interpretative approach that minimises the risk of erroneous classifications. This methodology is based on a holistic assessment of the various indicators, taking into account the nature of the alleged business cooperation and the specific conditions under which the work is performed. The Court emphasises the need to establish rigorous distinctions, namely between the effective exercise of management power and the mere transmission of technical instructions; between genuine integration into an organisational structure and simple collaboration with the beneficiary's employees; between supervisory power and verification of work results; and, ultimately, between legal subordination and legitimate technical coordination within a business partnership.

In the case at hand, the Court nevertheless concluded that the manner in which the alleged service providers carried out their activity demonstrated their integration into the beneficiary’s organisational structure and their submission to that party’s orders, direction and supervision.

Disciplinary Proceedings – Prohibited Evidence

Judgment of the Guimarães Court of Appeal of 05.02.2026

Case No. 706/25.1T8VNF-A.G1

This judgment was delivered in the context of an appeal against a judicial decision on the admissibility of the use of evidence — namely, screenshots of messages of a sexual nature and intimate images sent via the Messenger platform — in proceedings challenging the regularity and lawfulness of the dismissal of an employee for just cause, on the grounds of conduct classified as sexual harassment directed at two colleagues under his supervision.

In his defence, the employee raised the inadmissibility of the above mentioned evidence, relied upon by the employer in the disciplinary proceedings, arguing that the communications in question were of a private nature, benefiting from the protection of confidentiality of communications, and that their use constituted a violation of the right to privacy and private life, further emphasising that the acts had not occurred in a professional context.

Ruling on the evidence, the court of first instance, in a view later endorsed by the Guimarães Court of Appeal, considered that there had been no unlawful obtaining of evidence, since (i) the messages had been voluntarily disclosed by the recipients themselves, without any interference with the employee's devices, and (ii) given that the offence had been committed precisely by means of the messages in question, prohibiting their use would amount to an unjustified denial of the right of action and the right to produce evidence, and would undermine the very purpose of the principle of the protection of private life. Accordingly, in the circumstances of the case, the Court held that the right of action and the right to produce evidence prevailed over the right to privacy and private life.

The Guimarães Court of Appeal further added that certain conduct within the personal sphere may produce effects on the employment relationship, and therefore the private nature of a behaviour does not, in itself, preclude its disciplinary relevance.  

Principle of Equal Pay – Posted Employee

Judgment of the Lisbon Court of Appeal of 28.01.2026

Case No. 1485/23.2T8ALM.L1-4

In this judgment, the Lisbon Court of Appeal examined a claim for employment credits brought by an employee of the Portuguese branch of a Spanish company, who had been seconded on several occasions to perform duties for clients based in various European countries. Specifically, the employee sought payment of salary differences relating to variable components of remuneration, claiming that he had received amounts lower than those paid to colleagues engaged by the French and Dutch companies within the same corporate group, which he regarded as constituting discriminatory treatment.

It was proven that the employee held the same professional category as the employees cited as comparators, performed the same tasks as them, for the same clients, as part of the same work team, working at the same workplace and fulfilling the same working hours. Additionally, it was demonstrated that all work activities were coordinated centrally by a single structure within the corporate group.

The employer argued that the employees had employment contracts with distinct legal entities established in different Member States, and that the differentiated amounts of the variable components reflected the different costs of living in each of those countries.

The Lisbon Court of Appeal, in line with the court of first instance, held that a salary differentiation based solely on the cost of living in the country where the employee was originally engaged lacks legitimate justification, as it is not grounded in objective criteria related to the employee's performance, productivity, attendance or seniority, and therefore constitutes a discriminatory practice. Accordingly, the Court of Appeal upheld the first-instance decision ordering the employer to pay the salary differences claimed by the employee. 

Assignment of Company Vehicle – Principle of Non-Reduction of Remuneration

Judgment of the Porto Court of Appeal of 16.01.2026

Case No. 4669/24.2T8VNG.P1

In these proceedings, the employee contested the employer's decision to unilaterally withdraw the company vehicle that had been provided to him since the commencement of the employment relationship, both for the performance of his duties and for daily commuting between home and work.

From the Court's perspective, the central issue lay in determining whether daily travel between home and the workplace constitutes personal use of the vehicle.

Citing established case law, the Court reaffirmed that employment law does not contemplate an intermediate category between working time and rest time. Accordingly, time spent commuting to a fixed workplace falls within rest time, given that the employee is neither performing their duties nor at the employer's disposal – as opposed to cases where employers travel directly from home to clients or other destinations at the employer's direction.

In the case at hand, the Court identified two distinct phases in the employment relationship. In a first phase, the employee performed duties at various locations, such that the vehicle served solely as a work tool. In a second phase, once the employee began working at a fixed location, home-to-work-to-home travel came to constitute personal use, thus assuming the nature of remuneration in kind.  

Accordingly, the Court ordered the employer to pay the employee a compensation in an amount corresponding to the portion of the vehicle use attributable to the home-to-work-to-home journeys.