Progression Accelerator in Public Administration and Fixed-Term Employment Contracts

Legal Brief by Bruno Martelo

With the announced intention of mitigating the impact of career freezes for public employment contract workers in Portugal, Decree-Law No. 75/2023, of August 29, established a special regime to accelerate career progression.

The scope of application of the aforementioned legal act covers workers integrated into a career who, as of its entry into force—January 1, 2024—meet the following cumulative requirements:

a) They undergo the mandatory change in remuneration positioning due to accumulated points in performance evaluations;

b) They have 18 or more years of service in positions integrated into a career or careers, covering the periods between:

i) August 30, 2005, and December 31, 2007;
ii) January 1, 2011, and December 31, 2017.

Among the various questions raised regarding the application of what is commonly referred to as the “progression accelerator,” one concerns whether service time provided to the Public Administration under a fixed-term employment contract counts towards the 18 years of service requirement.

Prima facie, the legislator’s reference to the requirement that the 18 years of service must have been performed while the worker was integrated into a career or careers seems sufficient to dispel any doubts. Indeed, Article 56(6) of the General Law on Public Employment clarifies that provisions concerning careers do not apply to public employment relationships under fixed-term contracts. Consequently, as consistently affirmed by administrative courts, workers employed under fixed-term contracts cannot be considered as integrated into careers. The Directorate-General for Administration and Public Employment is equally unequivocal in its FAQs: service time can only be considered if a legal provision expressly attributes relevance to service performed under an individual employment contract or a fixed-term contract (whether definite or indefinite).

However, there have been recent situations in which service time accrued by public administration workers under fixed-term contracts has been recognized for the purpose of altering remuneration positioning. This is the case, for example, in the nursing and specialized nursing careers, pursuant to Decree-Law No. 80-B/2022, of November 28.

Thus, the service time performed by such workers under contracts that did not place them within a career ends up being relevant for career progression once they later enter such a career. This circumstance not only raises doubts about whether these workers should also have this time counted for the purposes of career acceleration—since it would be wholly inconsistent not to—but also generates the perception of discriminatory treatment in relation to other public sector workers.

Moreover, the case law of the Court of Justice of the European Union and its interpretation of Council Directive 1999/70/EC, of June 28, 1999, suggest that service time provided by a public administration worker under a fixed-term employment contract cannot, except for objective reasons, be disregarded for career progression once that worker has subsequently entered a career structure.

Thus, the exclusion of service time performed under fixed-term contracts from the application of the “progression accelerator,” aside from contradicting the positions that the Administration has taken regarding its consideration for other purposes, as outlined above, also appears to be inconsistent with European Union law.

And—let’s be frank—if a worker has performed duties for the Public Administration under a fixed-term employment contract and later continued performing the same duties under a permanent public employment contract—most often without any gap in service—does a legal impediment preventing that first period from being counted towards career progression make sense?

That is the question!