The Guimaraes Court of Appeal's June 16 2016 decision in Case 1032/15.0T8BRG.G1 examined the legality of an employer's decision to withdraw two public holidays from its employees.
A trade union brought an action against an employer, seeking an order requiring that it recognise the illegality of its decision to withdraw two public holidays from its employees without loss of pay. The claim was based on the fact that the employer had started the custom of giving both public holidays to its employees, without loss of pay, and that this right should therefore be maintained in future.
The first-instance court rejected the trade union's claim in full and dismissed the claim against the employer. The trade union appealed to the Guimaraes Court of Appeal, arguing that the right in question was undoubtedly a right acquired by the employees, which had become part of each employee's employment contract. As such, this right could not be unilaterally withdrawn as the employer had done. The withdrawal was, therefore, a clear violation of the principle that acquired rights cannot be reduced.
The trade union also argued that the employer's conduct in removing the right was illegal as it was the result of a binding employment custom, which – under Article 1 of the Employment Code – is a binding and relevant source of law.
The Guimaraes Court of Appeal held that the granting of the public holidays to employees amounted to a binding employment practice, as it was:
- general in character, because it had been applied indiscriminately to all the employees;
- fixed, because it had remained unchanged over the years; and
- constant, because it had been adopted uninterruptedly for 20 years.
As a result, the court decided that the employer could not make a unilateral change to the practice that, because of its classification as a custom, had become binding.
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