A quiet and discrete revolution in the Portuguese courts: The twilight of the employment contract?

Abstract

The distinction between an employment contract and a provision of services contract is a recurring theme in the Portuguese courts, regularly associated with the use of the provision of services contract to dissimulate an employment relationship under an apparent self-employment rapport. The lawmaker, in order to fight the misuse of the provision of services contract within an employment rapport, established, through Lei 63/2013, 27.08, updated by the Lei 55/2017, 17.07, an administrative procedure in article 15-A of Lei 107/2009, 14.09, and a special lawsuit to recognize the existence of an employment contract, in article 186-K of the Código de Processo do Trabalho (Labour Procedure Code- CPT), whenever there is a provision of activity with the characteristics of an employment contract. The analysis of the most recent higher courts case law reveals a clear trend to qualify rapports, whose legal nature is under analysis, as provision of services contract, in a sense, paradoxically, contrary to the efforts made by the lawmaker. In this paper, we therefore seek to scrutinize this incomprehensible favouring by the higher courts of the provision of services contract, whose maintenance may lead in the future to an inevitable weakening of the employment contract, damaging employees, Labour Law and Society.