Madalena Caldeira reflects on the urgency of clarifying article 338-A of the Labour Code | Advocatus

Madalena Caldeira, partner and head of Employment, reflects on Article 338.º-A, which “since it was introduced as part of the ‘Agenda do Trabalho Digno’, has generated confusion, contradictory interpretations and growing frustration”, in an Advocatus’ opinion article.

Article 338.º-A states that: ‘It is not permitted to resort to the acquisition of external services from a third party in order to fulfil needs that have been met by a worker whose contract has been terminated in the previous 12 months by collective redundancy or job extinction.’

The introduction of the article as part of the ‘Agenda do Trabalho Digno’ had a clear objective: to strengthen the protection of workers in cases of collective redundancy or job losses, especially when their jobs are then outsourced.

Madalena Caldeira reflects on the difficult interpretation and even more difficult application of the rule and says: “The paradox is obvious. And it contravenes the principles of entrepreneurial freedom.”

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