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Portugal - Substantive requirements for dismissals


Substantive requirements for dismissals (justified and prohibited grounds) - Portugal - 2014    

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Obligation to provide reasons to the employee: Yes
Remarks:
  • Communication of the reasons for dismissal is always required.
    - For disciplinary dismissals:
    Disciplinary dismissals are always preceded by a formal disciplinary process. The employer is first required to provide the employee, with copy to the works council, a written statement detailing the reasons for dismissal based on specific facts (statement of guilt - "nota de culpa") and the employee must be given an opportunity to respond to the allegations. (art. 353 LC) Once the disciplinary process is concluded, the employer must notify in writing his/her final decision to dismissal which shall set out the reasons for the dismissal. (art. 357, 4), 5) LC).

    - Dismissal for unsuitability:
    The dismissal decision which is communicated to the worker, with a copy to the works council must indicate the reasons justifying the dismissal (art. 376(1) a) LC).

    - Dismissal based on the extinction of the position (individual redundancy):
    The dismissal decision which is communicated to the worker, with a copy to the works council must indicate the reasons justifying the dismissal (art. 369 (1) a) LC).

    For collective dismissals, the reasons for the dismissal shall be first given to the worker's representatives through the information and consultation procedures (art. with the worker's representatives (art. 360 LC). The final decision is communicated to each employee and must clearly state the reasons for the dismissal (art. 363 LC)


Valid grounds (justified dismissal): worker's capacity; economic reasons; worker's conduct
NOTE: This information has changed since the previous period covered.
Remarks:
  • The right to job security and the prohibition of dismissal without a fair reason is embodied in the Portuguese Constitution. Article 53 of the Constitution provides that:
    "Workers shall be guaranteed job security, and dismissal without fair cause or for political or ideological reasons shall be prohibited."

    The LC allows for termination of employment at the initiative of the employer for subjective reasons attributable to the employee (conduct-based motives constituting a "just cause") or for objective reasons, related to the employee (unsuitability) or not (economic reasons: collective dismissal or elimination of the position).

    1) Disciplinary dismissals (just cause dismissal):

    A just cause is defined as a wrongful conduct of the employee that in light of its seriousness and of its consequences makes it immediately and practically impossible for the employment relationship to continue.
    The LC provides a non-exhaustive list of behaviours or acts that may constitute just cause for a dismissal including wilful disobedience to orders, breach of other employee's rights and guarantees, repeated provocation of conflicts with other employees, causing serious damages to the pecuniary interests of the company, persistent non-compliance with the due diligence obligation in performing the work, making false statements to justify absences, unjustified absence for 5 (consecutive) or ten (non-consecutive) days in a calendar year, failure to comply with the health and safety rules, unusual reduction of productivity...(art. 351 LC)

    2) Dismissal for unsuitability:

    It is possible to dismiss an employee on the ground of unsuitability for the position.

    A) Unsuitability occurs in the following situations:
    - continued reduction in the employee's productivity or quality of work;
    - repeated damages to the equipment allocated to the job;
    - risks for the employee's own health and safety or to that of third parties.

    In addition, the following requirements must be fulfilled:
    a) there has been changes in the workplace resulting from the introduction of new technologies or equipment in the six months preceding the beginning of the dismissal procedure.
    b)the worker must have been given adequate training to adjust to the changes introduced and,
    c) the worker must have been given an adaptation period of at least 30 days whenever the position involves health and safety risks and,
    d)there is no other position available in the enterprise compatible with the "professional category of the worker" (as from 2104: the original wording referred to the "worker's qualification" (see below).

    NEW in 2014 : Under Law 23/2012 requirement under letter d) was eliminated. The judgment of the Constitutional Court no. 602/13 of 23 September 2013, declared elimination of the requirement under letter d) unconstitutional. As a consequence, Law 27/2014 of 8 May 2014 reintroduced the requirement under letter d) (amended as explained above).


    B) In addition, unsuitability occurs in the context of complex, technical or managerial positions when the employee fails to reach the objectives previously agreed and it is practically impossible for the employment relationship to continue. In such case, changes to worker's positions resulting from the introduction of new technologies or equipment or modifications in the manufacturing or marketing process are also required. It is also compulsory that the situation of unsuitability is not caused by the lack of safety and health conditions at work attributable to the employer (art. 374(2) and 375(1) LC).

    3) Economic dismissals:

    The LC also allows dismissals for economic reasons. Depending on the number of employees concerned, a distinction is made between collective dismissals and dismissals based on the elimination of the position. Both types of dismissal are allowed on the grounds of the closure of one or more departments, or the need to reduce the workforce for structural, technological or economic reasons (art. 359(1) LC).

    NEW in 2014 :
    Under the original version of the LC, art 368 (2) provided for a list of criteria to be followed to select the employee to be made redundant when more employees with the same post where present in the section; these were: 1) shorter length of service in the same post; 2) shorter length of service in the occupational category; 3) lower rank class of the occupational category, 4) shorter length of service in the enterprise. Law 23/2012 eliminated this list so that criteria could be set out by the employer provided that they were relevant and non-discriminatory. The judgment of the Constitutional Court no. 602/13 of 23 September 2013, declared elimination of list unconstitutional. As a consequence, Law 27/2014 of 8 May 2014 introduced an amended list of criteria: 1) lower level of performance, pursuant to criteria pre-disclosed to the employee; 2) lower academic and professional qualifications;3) Higher cost of keeping the employment relationship in place; lower work experience in the post; lower length of service.


Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; sex; sexual orientation; political opinion; social origin; nationality/national origin; age; trade union membership and activities; disabilities; language; parental leave; birth; genetic information; ethnic origin
Remarks:
  • There is a general principle of non-discrimination in the LC. According to this principle, any employer is prohibited from discriminating any employee or applicant, directly or indirectly, on the basis of extraction, age, sex, sexual orientation, marital status, family condition, economic situation, education, social condition or origin, genetic information, reduced capacity for work, disability, chronic illness, nationality, ethnic origin, race, territory of origin, language, religion, political opinion or ideological opinions and trade union affiliation (art. 24 and 25 LC).

    In addition, the LC specifically prohibits dismissals based on political, ideological, ethnic or religious grounds, even when the employer invokes a different reason (art. 381(a) LC).
    Lastly, the dismissal of a pregnant employee, an employee who have recently given birth or is breastfeeding or during parental leave is unlawful if the prior opinion of the competent administrative body is not requested (art. 381 d) LC).


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; workers with family responsibilities
Remarks:
  • - Pregnant women/ women on maternity leave and workers with family responsibilities:
    There is no prohibition of dismissal during pregnancy or maternity leave. However, according to article 63 LC, any dismissal of a pregnant employee, an employee who recently gave birth or is breastfeeding or any employee (male and female) on parental leave requires the prior favourable opinion of the competent authority (Commission for Equality in Labour and Employment (CITE)).
    Any disciplinary dismissal of those employees is always presumed to have been done without a just cause.
    The CITE shall issue its opinion within 30 days.
    If the opinion is unfavourable, the employer cannot dismiss the employee without having obtained a court decision recognizing the existence of a justified reason. In such cases, the burden of the proof lies on the employer. If a dismissal is declared unlawful by the courts the employer cannot oppose the reinstatement of the employee. As an alternative to reinstatement the employee is entitled to compensation.
    (Note also that under Article 381 of the Labour Code, failure by the employer to ask for a prior formal opinion from this authority is in itself a ground of unlawfulness.)

    - Workers' representatives:
    The LC prohibits the dismissal of workers' representatives on the grounds of their participation in collective representation structure or trade-union affiliation or non-affiliation (art. 406) and provides them with special protection in case of disciplinary action or dismissal (art. 410). In particular, the dismissal of a candidate for a trade union body or the Works Council or employees who are, or have been, members of such bodies within the last three years is always presumed to have been done without a just cause (art. 420-3 LC).
    If the employer cannot prove that the disciplinary of dismissal was justified by a just cause, the workers' representative has the right to choose between reinstatement or compensation higher than the standard one (art. 410-6). The court proceedings for challenging such dismissals are of an urgent nature (art. 410-5).