New Obligations on Employers to Ensure the Prevention of Harassment

There are new obligations on employers aimed at strengthening protection against harassment. These include an obligation on all employers with over seven employees to adopt a policy on workplace harassment and an obligation to instigate disciplinary proceedings when the employer is aware of harassment at work.

Harassment is defined under the Portuguese Labor Code as an “unwanted behavior, namely based on a discriminatory factor, which occurs while applying to work or in the workplace, during work or professional training, with the intent or result of disturbing or embarrassing a person, offending a person or creating an intimidating, hostile, degrading, humiliating or disturbing atmosphere.” 

The following are key amendments to the Portuguese Labor Code made by Law no. 73/2017:

• The specific provision of the prohibition of harassment;
• The principle that harassment gives the victim the right to compensation;
• The employer’s duty to adopt codes of good conduct for preventing and combating workplace harassment applies when an employer has seven or more employees—non-compliance is considered a serious infraction;
• A new duty to initiate disciplinary proceedings whenever the employer is aware of alleged harassment at work—non-compliance is considered a serious infraction;
• The liability of the employer for compensation for damages arising from occupational diseases caused by harassment;
• A presumption (that the employer will have to rebut) that any dismissal or other disciplinary sanction imposed is abusive retaliation when it occurs within one year of a complaint or other form of exercise of rights relating to equality, non-discrimination, and harassment;
• An obligation to include in termination agreements the legal deadline for the exercise of the right to revoke the agreement by the employee; and
• The inclusion of harassment in the range of situations of just cause for termination by the employee.

Comment

This new legislative framework for the prevention of workplace harassment has improved and reinforced the protection of harassed employees. It is designed to raise awareness among employees and promote reporting of inappropriate behaviors, and require employers to have a more active role in preventing and combating unlawful conduct in the workplace.

Written by Rui Vaz Pereira of Cuatrecasas and Roger James of Ogletree Deakins