Probation Periods in Portuguese Employment

Understanding Probation Periods in Portuguese Law

The probation period, known as período experimental in Portuguese, is an initial evaluation phase during which both employer and worker assess whether the employment relationship should continue. Probation periods are regulated by Articles 111-113 of the Código do Trabalho (Labor Code), Portugal's primary employment legislation.

Unlike in some countries, probation periods in Portugal are not mandatory. They can be excluded entirely through written agreement between employer and worker. When included, probation periods must comply with strict legal limits on duration, termination procedures, and worker protections.

Both parties must act in good faith during the probation period. This means the employer should provide adequate training and evaluation, while the worker should make genuine efforts to learn and perform the role.

The 2023 Notification Requirement

A significant reform introduced by the 2023 Decent Work Agenda (Lei nº 13/2023) requires employers to inform workers in writing about probation terms within 7 days of the first day of work. If the employer fails to provide this notification within 7 days, the probation period is automatically deemed excluded—meaning the worker is considered to have passed probation from day one.

This reform protects workers from employers who might attempt to impose or extend probation periods without clear prior agreement.

Maximum Probation Durations

Probation period length varies based on contract type and the position's complexity. Portuguese law sets clear maximum durations that employers cannot exceed.

Permanent Contracts (Contratos por Tempo Indeterminado)

For permanent employment contracts, maximum probation periods are:

90 Days (Standard Positions)
General workers in standard positions have a maximum probation period of 90 days. This applies to most entry-level and mid-level roles that don't require exceptional qualifications or involve management responsibilities.

Example: Carlos is hired as a warehouse assistant on a permanent contract. His probation period cannot exceed 90 days.

180 Days (Technical or Trust Positions)
Workers in positions requiring technical complexity, high responsibility, special qualifications, or involving trust and confidence can have probation periods up to 180 days. This category also includes workers seeking first employment or who are long-term unemployed.

Positions falling into this category include:

• Roles requiring specialized professional qualifications
• Positions involving significant responsibility or autonomy
• Jobs requiring special trust or confidentiality
• First-time workers entering the job market
• Long-term unemployed workers returning to employment

Example: Ana is hired as a software engineer requiring specialized technical skills. Her employer can set a probation period up to 180 days.

240 Days (Management Positions)
Workers in management positions or senior executive roles (cargos de direção or quadro superior) can have probation periods up to 240 days. These are positions with substantial decision-making authority and organizational responsibility.

Example: Miguel is hired as a department director. His probation period can extend up to 240 days.

Fixed-Term Contracts (Contratos a Termo)

For fixed-term employment contracts, probation periods are significantly shorter:

30 Days - Contracts with duration of 6 months or longer
15 Days - Contracts with duration less than 6 months, or uncertain-term contracts with foreseeable duration less than 6 months

Example: Sofia has a 9-month fixed-term contract. Her maximum probation period is 30 days.

Commission Service Contracts

Commission service contracts—specialized contracts for senior management and executive positions with special trust and autonomy—can include probation periods up to 180 days, but only if expressly stipulated in the employment contract.

Summary Table

When Probation Periods Can Be Reduced or Excluded

Portuguese law recognizes that experienced workers shouldn't undergo full probation periods when they've already demonstrated their capabilities. Several circumstances can reduce or completely exclude probation periods.

Prior Experience with the Same Employer

If you've previously worked for the same employer, your probation period is reduced or excluded based on the duration of prior work in:

• Previous fixed-term contracts for the same activity
• Temporary work contracts in the same position
• Service provision contracts for the same purpose
• Professional internships for the same activity

The law doesn't specify exact reduction calculations, but ACT (Labor Inspectorate) interprets these provisions to mean substantial prior experience with the same employer should result in reduced or eliminated probation periods.

Example: Teresa worked for Company X for 6 months on a fixed-term contract as a marketing assistant. When hired permanently for the same role, her probation period should be reduced or excluded entirely.

Prior Experience with Different Employers (2023 Reform)

The 2023 Decent Work Agenda introduced important new reductions for workers with experience from different employers:

First Employment or Long-Term Unemployed Workers:
If you're seeking first employment or are long-term unemployed, your probation period must be reduced or excluded if you completed a fixed-term contract lasting 90 days or more with a different employer.

This reform recognizes that workers shouldn't face extended probation periods when they've already proven themselves in similar roles, even if with different employers.

Example: João was unemployed for 18 months. Before unemployment, he worked 4 months in a similar role for a different company. Under 2023 reforms, his new employer must reduce his probation period based on this prior experience.

Professional Internships (Estágio Profissional)

If you completed a professional internship (estágio profissional) lasting 90 days or more in the last 12 months with a positive evaluation, your probation period must be reduced based on the internship duration—even if the new employer is different—provided the work activity is the same.

Example: Mariana completed a 6-month professional internship in graphic design with positive evaluation. She's now hired by a different company for a graphic design position. Her probation period must be reduced to account for her internship experience.

What Counts Toward Your Probation Period

Understanding what does and doesn't count toward probation is essential for calculating when your probation ends.

What Counts

Working Days:
Your probation begins from your first day of actual work performance and continues for each day you actively work.

Employer-Required Training:
Training determined by your employer counts toward probation, but with an important limitation: Only up to 50% of the probation duration can consist of training time.

Example: Miguel has a 90-day probation period. His employer requires 40 days of initial training. Only 45 days of training count toward probation (50% of 90 days). The remaining training days don't count, effectively extending his probation.

What Does NOT Count

Several types of absences do NOT count toward your probation period, meaning they effectively extend it:

• Days of absence (falta) - Even justified absences don't count
• Days of leave (licença) - Any type of leave
• Days of dispensation (dispensa) - Such as prenatal consultation appointments
• Days of contract suspension - Any period when the contract is temporarily suspended

Example: Ana has a 90-day probation. She takes 5 days of sick leave and 2 days of other justified absences during probation. These 7 days don't count, so her probation effectively extends by 7 days.

Termination Rights and Procedures During Probation

During probation, both parties have special termination rights that differ from post-probation employment.

Termination by Employer

Employers can terminate employment during probation without providing just cause, but they must:

Provide Advance Written Notice:

• 7 days' notice if probation duration ≤ 60 days
• 15 days' notice if probation duration is 60-120 days
• 30 days' notice if probation duration > 120 days

Requirements:

• Termination must be in writing
• Must state that termination is occurring during probation period
• Must comply with notice period requirements

Example: Sofia has a 90-day probation period (falls in 60-120 day range). Her employer must provide 15 days' written notice if terminating during probation.

Termination by Worker

Workers have more flexible termination rights during probation:

No Notice Required:
Workers can terminate employment immediately during probation without providing advance notice to the employer.

Requirements:

• Should be in writing
• Should state termination is during probation

This asymmetry reflects the law's recognition that probation serves primarily the employer's evaluation interests.

When Employers CANNOT Terminate During Probation

Despite general termination rights during probation, employers cannot terminate workers in the following protected situations:

• Workers on sick leave - Cannot terminate while worker is medically unable to work
• Workers on accident leave - Protected during work accident recovery
• Workers on maternity/paternity/parental leave - Full protection during family leave
• Pregnant workers - Cannot terminate from pregnancy announcement through birth
• Workers during military service - Protected during mandatory service
• Any situation violating fundamental rights - Includes discrimination, retaliation, or abuse of right

Example: Carla discovers she's pregnant during her 90-day probation and informs her employer. The employer cannot terminate her during probation, even with notice, due to pregnancy protection.

Consequences of Unlawful Termination During Probation

If an employer terminates a worker during probation in violation of these protections or in a manner that violates the worker's fundamental rights, the termination may be deemed unlawful. The worker may be entitled to:

• Reinstatement to the position
• Compensation for the period without work
• Damages for rights violations

Example: If an employer terminates a worker during probation specifically because the worker filed a complaint with ACT about unpaid overtime, this constitutes retaliation and violates fundamental rights. The termination would be unlawful despite being during probation.

Your Rights and Protections During Probation

Workers on probation have nearly identical rights to workers who have completed probation.

Equal Pay and Benefits

During probation, you are entitled to:

• Same base salary - Cannot be paid less due to probation status
• Same benefits - Health insurance, meal allowance, transport if provided to others
• Same working conditions - Hours, breaks, workplace standards
• Same legal protections - Non-discrimination, harassment prevention, fundamental rights

You cannot be paid less or provided fewer benefits simply because you're on probation.

Seniority Calculation

Your seniority (antiguidade) begins counting from the first day of probation, not from the day probation ends. This is important because seniority affects:

• Vacation entitlement (increases with seniority)
• Compensation calculations in case of termination
• Eligibility for certain benefits
• Priority in redundancy situations

Example: Carlos starts work on January 1 with a 90-day probation ending March 31. His seniority calculation begins January 1, not April 1.

Protection Against Discrimination

All anti-discrimination protections apply during probation. You cannot be treated differently or terminated based on:

• Gender, race, ethnicity, or national origin
• Religion or beliefs
• Political opinions
• Union membership or activity
• Sexual orientation or gender identity
• Age or disability
• Pregnancy or family status
• Any other protected characteristic

Access to Complaint Mechanisms

If you believe your rights are being violated during probation, you have full access to enforcement mechanisms:

• ACT (Autoridade para as Condições do Trabalho) - Labor Inspectorate for workplace violations
• CITE (Comissão para a Igualdade no Trabalho e no Emprego) - For discrimination or equality issues
• Labor courts - For legal claims and disputes

Employers cannot retaliate against workers who exercise their rights to file complaints, even during probation.

Practical Guidance for Probation Periods

For Workers Starting Probation

Before Your First Day:

• Ensure your employment contract clearly states probation terms (duration, any special conditions)
• Understand which probation duration applies to your position
• Ask about reduction if you have relevant prior experience

Within First 7 Days:

• Confirm you've received written notification about probation terms
• If you don't receive notification within 7 days, the probation period may be automatically excluded
• Document all communications about probation

During Probation:

• Request clear performance expectations and evaluation criteria
• Document training and performance feedback
• Keep records of your working days and any absences
• Ask for feedback regularly to understand your standing

If Facing Termination:

• Request written termination notice stating it's during probation
• Check if you're in a protected category (pregnant, on leave, etc.)
• Consider whether termination might violate your fundamental rights
• Seek legal advice if termination seems discriminatory or retaliatory

For Employers Hiring Workers

Contract Stage:

• Clearly state probation terms in the employment contract
• Ensure probation duration complies with legal maximums for the position type
• Consider reduction or exclusion for experienced workers
• Don't include probation if you intend to exclude it

First 7 Days:

• Provide written notification of probation terms within 7 days of first work day
• Document delivery of this notification
• Failure to notify within 7 days results in probation exclusion

During Probation:

• Provide adequate training and support for evaluation
• Give clear, regular performance feedback
• Document performance issues if considering termination
• Act in good faith—probation is for genuine evaluation, not avoiding termination rules

If Terminating:

• Provide advance notice (7, 15, or 30 days depending on probation length)
• Ensure termination is in writing and states it's during probation
• Verify worker isn't in a protected category
• Ensure termination doesn't violate fundamental rights

Related Guides:

• Portugal's Labor Law Framework and Regulatory Authorities - What Expats Need to Know
• Employment Contracts in Portugal: Types, Requirements, and Classifications
• Wages, Compensation, and Social Security in Portugal: A Complete Guide