Duration of the trial period in fixed-term employment contracts
RULING Nº 632/08
23 of December of 2008
The right to work, enshrined in the Constitution as a social right, a right to State benefit or a right to the development and adoption of public policies geared to promoting employment, includes in its scope the right to seek employment, the negative interpretation of which generates a right not to be arbitrarily deprived of employment which has been sought and obtained. In the infra-constitutional system, recourse to insecure work based on "fixed-term contracts" must be exceptional, as required by the duty incumbent on the ordinary legislature to prevent unjustified situations of insecure employment.
The principle of necessity or enforceability which governs all infra-constitutional rules restricting fundamental rights does not justify increasing from 90 to 180 days the trial period applicable to workers holding contracts of employment.
The President of the Republic requested the Constitutional Court to conduct prior verification of the constitutionality of the rule governing the duration of the trial period set out in fixed-term contracts of employment and increasing the said trial period applicable to workers from 90 to 180 days. According to the President of the Republic, this rule restricts constitutional rights, freedoms and safeguards, because the longer the trial period the greater the insecurity of the legal relationship and the weaker the guarantee of retaining employment.
It must therefore be ascertained whether the restriction noted complies with the principle of proportionality, in the framework of its underlying principles of appropriateness, necessity and reasonability, in accordance with Article 18 of the Constitution.
The judgment points out that under constitutional case-law, to the extent that the Constitution imposes the status of the person, citizen and worker as a criterion governing the possession of constitutional rights, freedoms and safeguards, the Constitution clearly stipulates that the rights which it enshrines cannot be seen exclusively as rights to forbearance on the part of the State or rights which concern the State only, since they also include rights which, although they concern relations among citizens, can "be binding on private bodies".
This fact is bound up with the principle of the rule of law and that of the realisation of economic, social and cultural democracy, which derives from the constitutional aim of providing special protection for the status of workers as holders of constitutional rights, freedoms and safeguards. The fact of the matter is that the word "worker" as used in the Constitution embraces all those who work for someone else.
The Constitutional Court stresses that the safeguard on retaining employment, understood as a "right, freedom and/or safeguard", has a content that cannot be treated in isolation from the right to work, which is also enshrined in the Constitution. As a social right, a right to State benefit or a right to the formulation and adoption of public policies geared to promoting employment, the right to work includes several subjective, complex and multifaceted structures within its scope. These include the right to seek employment as a means of achieving personal projects in a context of human dignity. To that extent, the interest which is legally protected by this specific aspect of the right to work is closely linked to the right freely to choose one's occupation.
In the Portuguese Constitution, however, the right to seek employment has a dimension that results from the prohibition of arbitrary deprivation of employment and from the right to stability of employment, both these aspects deriving from the right to retain employment. That being the case, the State in general and the legislature in particular are required to prevent unjustified situations of insecure employment.
The strict definition of an "unjustified situation of insecure employment" or of the right to stability of employment must also take account of the right to free private economic initiative as enshrined in the Constitution. "The requisite counterbalance to rights in the employment field is the freedom of enterprise and private initiative, without which neither employment nor workers can exist". In the context of a market economy and an open society, respect for the legal interest which freedom of enterprise is intended to protect requires individuals not to be barred from producing and distributing goods and services. This means that the freedom to organise the requisite institutional resources for executing the activity initiated must also be included in the mechanism for protecting this legal rule. Thus in the Portuguese legal system, "possession of the enterprise comprises neither its ownership nor its lease, with their absolute and exclusive natures; on the contrary, such possession is restricted, and the enterprise therefore embraces different legal positions, rights and expectations on the part of the workers which the entrepreneur is legally obliged to respect". The prohibition of arbitrary dismissal and the need to prevent unjustified situations of insecure employment are two of these legal constraints. This is why the Court notes that "the indefinite contract of employment is the type of contract which best serves the worker's interests and the social aims pursued by working activities".
The relations between workers and employers as embodied in indefinite contracts must be the rule and fixed-term contracts the exception. This is why the law currently provides that the possibility of concluding fixed-term contracts must be restricted by criteria which are absent from the regulations governing indefinite contracts.
In the infra-constitutional system, any recourse to insecure work on the basis of fixed-term contracts must be exceptional.
The Court stresses that the legal stipulation of a "trial" or "probation" period coinciding with the initial phase of execution of the contract corresponds to a well-established tradition, accompanied by a justification of the need for such a probation period (coinciding with the initial phase of execution of the contract), particularly in indefinite contracts of employment.
The "probation" period is intended to enable the parties to verify - in the context of an established legal relationship of employment - whether the projected usefulness of the contract corresponds to the actual conditions under which the work is carried out.
Clearly, however, since the two parties do not have the same options as regards terminating the trial period - the worker can do so at any time by providing prior notice, whether or not there is any real justification, whereas the employer can only do so in accordance with the Code - the trial period is particularly advantageous for the employer. To that extent it is understandable that any prolongation of this period will be profitable for the employer and simultaneously "deleterious" to the worker's interests.
Consequently, it would seem obvious that this period must be limited by law. For reasons of protecting the workers' interests, as well as for reasons linked to the constitutional principle of avoiding unjustified situations of insecure employment, the legislature must establish a maximum duration for such "trial periods". The legislature is at liberty to determine the length of probation, but not to refrain from so determining.
The length of the trial period "cannot correspond to such a long time as to rob the principle of retaining employment of all meaning."
Legal measures to prolong the trial period are therefore potentially restrictive of the "right, freedom and safeguard" on retaining one's employment.
In the instant case the aim of amending the relevant legislation is to prolong the trial period solely in respect of unskilled workers. The period would be prolonged to twice the current length, which means that the probation period for such workers would be identical in length to that for skilled workers.
In reply to the question whether it is necessary, or enforceable, in view of the aim pursued by the legislative measures (ensuring that both parties to the contract of employment have a suitable "probation" or "trial" period), for indefinite contracts for unskilled workers to stipulate a trial period which not only corresponds to twice the duration of the current trial period but is equal to the "probation" period applied to skilled workers, the Constitutional Court concludes that the possible marginal increase in efficiency which prolonging the trial period would bring about does not per se justify increasing the trial period for unskilled workers from 90 to 180 days, the period demanded for skilled workers. For this reason it concludes that the legislature has not duly protected unskilled workers from unjustified situations of insecure employment, and declares unconstitutional the regulation the constitutionality of which it has examined