Sources checked
How do I tell whether someone working for my Portuguese company is a contractor or an employee?
Article 12(1) of the Código do Trabalho presumes an employment contract exists when the relationship shows some of five features: the work happens at a place set by the paying company, the company's own equipment is used, the worker follows fixed start and end times the company sets, a periodic fixed sum is paid, or the worker holds a management role. Courts read "some" as at least two; the company then must prove otherwise.
The five features that can trigger the employment presumption (Article 12(1))
- Workplace set by the company. The activity is carried out at a place belonging to the company or fixed by it, rather than chosen by the worker.
- Company-owned equipment. The equipment and tools used to do the work belong to the company paying for it, not to the worker.
- Fixed hours the company sets. The worker observes start and end times determined by the company, rather than setting their own schedule.
- Regular fixed payment. The company pays a set amount at regular intervals as consideration for the work, rather than a variable amount per deliverable.
- Management or leadership role. The worker performs management or leadership duties inside the company's own organisational structure.
Sources
- Código do Trabalho (Lei n.º 7/2009, de 12 de fevereiro), Artigo 12.º — Presunção de contrato de trabalho
- Lei n.º 107/2009, de 14 de setembro, Artigos 2.º(3) e 15.º-A — ACT procedure for apparent-contractor relationships showing Article 12(1) features
- Código de Processo do Trabalho, Artigos 186.º-K a 186.º-S — ação de reconhecimento da existência de contrato de trabalho (ARECT), as described in the Court's own account of the mechanism
- Acórdão do Tribunal da Relação de Lisboa, proc. 7323/25.4T8ALM.L1-4, 30 June 2026 (Relatora: Susana Martins da Silveira) — holds that proof of "alguns – pelo menos dois" of the Article 12(1) indicia triggers the presumption, shifting the burden to the paying party
Related questions
- Can we avoid the presumption just by signing a "contrato de prestação de serviços" (services agreement)?
- No. Article 12(1) looks at how the relationship actually works, not what the contract is called. If at least two of the five listed features are present in practice, the presumption applies regardless of the label the parties chose for the agreement.
- Is the employment presumption absolute, or can our company rebut it?
- It is a rebuttable presumption (presunção iuris tantum). Once at least two of the five features are proven, the burden shifts to the company to prove the relationship is not employment, for example by showing the person set their own hours and used their own equipment.
- What happens if a labour inspector (ACT) finds these features during an inspection?
- Under Article 15.º-A of Lei n.º 107/2009, the inspector records the finding and gives the company 10 days to regularise the worker's status. If the company does not, ACT sends the case to the Ministério Público within 5 days to start a court action, the ação de reconhecimento da existência de contrato de trabalho, under Articles 186.º-K to 186.º-R of the Código de Processo do Trabalho.
- What are the penalties for misclassifying an employee as a contractor?
- Article 12(2) of the Código do Trabalho makes this a "contra-ordenação muito grave" (very serious administrative offence). On repeat offences the company can also lose access to public subsidies or benefits and be barred from public tenders for up to two years (Article 12(3)); related companies and the company's managers or directors can be held jointly liable for the fine (Article 12(4)).
- Does the presumption work differently for someone who works through a digital platform?
- Yes. Platform workers have their own, separate presumption under Article 12.º-A of the Código do Trabalho, with a different list of six indicia specific to platform control (pricing, algorithmic management, account deactivation, and similar). That article is not covered on this page.
What this answer does not cover
- This page covers Article 12(1) of the Código do Trabalho, the general presumption of employment. It does not cover Article 12.º-A, the separate presumption for workers engaged through digital labour platforms.
- It does not cover the tax and social-security consequences of misclassification (Segurança Social contributions, IRS withholding). Only the labour-law presumption and the ACT/court procedure are addressed here.
- It does not provide a template services agreement or tell you how to structure a genuine contractor relationship. The presumption looks at the facts of how the work is actually done, not at contract wording.
- It does not cover sector-specific presumptions, such as those for temporary work agencies under Articles 175.º and 180.º of the Código do Trabalho.
- The exact number of Article 12(1) indicia required is not written into the statute itself, which says only "algumas" (some) of the five characteristics. The "at least two" figure given here is how courts and legal commentary have consistently read that word, not a number stated in the article's own text.
- The "at least two indicia" reading comes from an appellate decision (Tribunal da Relação de Lisboa, 2026) and academic commentary. Article 12(1) itself says only "algumas". A Supremo Tribunal de Justiça ruling confirming the same reading has not been checked.
