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SubscribeAnalysis of Supreme Court ruling of June 25, 2025
In its ruling of June 25, 2025, the Supreme Court of Justice (“Supreme Court”) reaffirmed its position on the interpretation of article 251 of the Portuguese Labor Code, governing absences due to the death of a spouse, relative or family member. Specifically, the court clarified that “consecutive days” referenced in the provision must be understood as consecutive calendar days, irrespective of their nature (i.e., business days, workdays or rest days).
The Supreme Court based its reasoning on a prior rulingit issued on April 19, 2023. That decision involved interpreting a collective bargaining agreement (“CBA”) clause similar to article 251 of the Portuguese Labor Code. In both instances, the Supreme Court rejected an interpretation limiting “consecutive days” to consecutive business days. For further analysis of the ruling from April 19, 2023, see our post Determining absences for the death of a family member: Consecutive calendar days or business days?
In its 2023 ruling, the Supreme Court determined that interpreting “consecutive days” as “business days” contradicts the general legal principles of law. First, the literal wording in the CBA clause (and in article 251 of the Portuguese Labor Code) explicitly states “consecutive days,” without narrowing it to “consecutive business days.” Second, such a restrictive interpretation could lead to discrimination, as employees whose rest days fall on weekends would gain more advantageous leave arrangements compared to employees with different schedules.
In its 2025 ruling, the Supreme Court strengthens its original stance through two additional arguments:
- Purpose of the provision: The Supreme Court underscored the provision’s intent to give employees time to recover from the emotional impact of the death of a spouse, relative or family member. The profound nature of such events transcends work schedules, rendering it irrelevant whether the bereavement leave coincides with business days, rest days or public holidays.
- Harmony and consistency in labor law: The Supreme Court stressed the importance of consistency in labor law. Specifically, it referenced article 91 of the Portuguese Labor Code, which covers leave for employee–students taking exams. In that context, the legislature explicitly clarified that “consecutive days” preceding exams include rest days and public holidays.
Recommendations for companies
In its Technical Note 7, updated on December 18, 2023, the Authority for Working Conditions (“ACT”) explicitly stated that leave under article 251 of the Portuguese Labor Code should be counted as business or workdays only, not as consecutive calendar days.
This divergence between caselaw, ACT guidance and legal doctrine (which is also incoherent on this matter) creates uncertainty for employers regarding how to calculate bereavement leave in the event of the death of a spouse, relative or family member.
Although the new Supreme Court ruling strongly supports interpreting article 251 as consecutive calendar days, the ACT remains the entity responsible for monitoring compliance with labor regulations.
Consequently, employers must carefully assess whether to align their practices with the ACT’s interpretation. In any case, deviating from ACT guidance may potentially lead to serious administrative offenses, triggering fines for which directors and managers would bear joint and several liability.
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