Go back to News
NEWS
Madalena Caldeira reflects on the urgency of clarifying article 338-A of the Labour Code | Advocatus
13 of May, 2025
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.”
Press contact
Director of Business Development, Marketing and Communications
Director of Business Development, Marketing and Communications
More information about
Gómez-Acebo & Pombo
03 Mar, 2026 
PUBLICATION
23 Feb, 2026
Irregularities in public sector staffing. Jurisdiction and/or substantive law
When a serious irregularity is found in administrative contracts owing to their employment character, jurisdiction lies with the employment branch of the court system. However, if the administrative route is not outside the scope of the law, jurisdiction lies with the judicial review branch of the court system.
23 Feb, 2026 
PUBLICATION
13 Feb, 2026
Senior management, membership of the board of directors and insolvency proceedings: single association theory yes, but also employer-employee relationship
Despite classifying the association as a commercial relationship and not an employment relationship, compensation amounts for termination of contract are allowed if they match those accepted by the insolvency practitioners, just as remuneration amounts are allowed if said practitioners had decided to accept remuneration in some months but not in others.
13 Feb, 2026
PUBLICATION
08 Jan, 2026
Sustainable commute plans: a new obligation for some companies
Companies with more than 200 employees or 100 per shift must have a sustainable mobility plan as part of their collective bargaining, the aim of which is to rationalise journeys
to the place where employees, customers, suppliers and visitors carry out their activities.
08 Jan, 2026
PUBLICATION
04 Dec, 2025
Regulatory implementation of internship agreements (Royal Decree 1065/2025)
The Government approves royal decree that implement important aspects of internship agreements, such as the maximum number of internship agreements per workplace, the content of individual training plans, details on mentoring processes, and limits on their use.
04 Dec, 2025
PUBLICATION
26 Nov, 2025
Current Teleworking Issues
The rediscovery of remote working and teleworking has led to the creation of a new business culture based on collective or individual agreements on the working conditions for this type of employment. This paper analyses the most significant trends in case law over the last year.
26 Nov, 2025
PUBLICATION
22 Oct, 2025
2027 is nearing. Will retirement change significantly?
It has been more than fifteen years since we learned that the pension age would be raised from sixty-five to sixty-seven in 2027. During this time, a number of transitional rules have been applied regarding the pension age and amount, whilst the possibility of work and pension compatibility has also been broadened.
22 Oct, 2025
PUBLICATION
21 Jul, 2025
Key points on ‘reasonable adjustments’ due to worker incapacity
The declaration of the worker's incapacity does not automatically terminate the contract, unless the worker expresses his or her wish not to continue working. But permanent absolute incapacity and severe incapacity are incompatible with work. For the rest, the worker has (an extinguishment?) period of ten days to decide and the employer has (an extinguishment?) period of thirty days to decide. Companies with less than 25 employees can assess when the obligation is an excessive burden, but the rest is left to numerous factors, not always objectively measurable. The company must provide a suitable offer without knowing what this suitability depends on.
21 Jul, 2025
PUBLICATION
15 Jul, 2025
Offsetting employment claims: can a company offset them unilaterally?
If a collective action is brought to challenge the unilateral conduct of a company in the offsetting of salary claims through a payroll deduction, the amount of the debt and the existence of quantitative discrepancies must necessarily be questioned in order to be able to assess whether or not there is legal offsetting on the part of the employer. Only by admitting that the debt is a liquidated amount that is due and payable will the employer - or the employee, as the case may be - be able to offset the debt, but if the debt is not disputed, the way is open for the offsetting of wage claims.
15 Jul, 2025
PUBLICATION
14 May, 2025
Permanent incapacity, except if employee decides otherwise or if an excessive burden on employer, no longer triggers termination of contract
The obligation to accommodate the workplace for persons with a permanent incapacity has come to the fore with such incapacity no longer constituting an automatic termination-of-employment-contract event. Now, unless the employee intends otherwise, the employer has three months to make necessary adjustments or to offer a suitable vacant post, and a failure to do so that is not justified on the grounds of excessive burden means not only a breach of law with all its consequences, but also the continuation of the employer/employee relationship with all its consequences.
14 May, 2025