Workplace harassment: employee rights and when it may justify terminating the contract.

Harassment at work is a serious breach of the employee's personality rights and is expressly prohibited by the Portuguese Labour Code (Código do Trabalho).

It is more than a simple disagreement between colleagues or a difficult professional relationship. Harassment consists of repeated or sufficiently serious conduct that offends the dignity of the person, affects their psychological wellbeing and makes the working environment intimidating, hostile and humiliating.

In addition to its consequences under employment law, harassment may give rise to administrative offence liability, civil liability and, in certain circumstances, criminal liability.

#What is harassment?

Under Article 29 of the Labour Code, harassment is unwanted conduct, in particular conduct based on a ground of discrimination, occurring during access to employment or in the course of the employment relationship, whose purpose or effect is to disturb or embarrass the employee, affect their dignity or create an intimidating, hostile, degrading, humiliating or destabilising environment.

The law protects the employee regardless of whether the conduct was carried out with a deliberate intention to cause harm.

Harassment may take various forms, and a distinction is commonly drawn between moral harassment and sexual harassment.

#Moral harassment

Moral harassment, often referred to as “mobbing”, consists of repeated conduct intended to belittle, isolate, humiliate or pressure an employee.

In practice, it may take the form of:

• constant humiliation or criticism in front of colleagues;
• deliberate exclusion from meetings or from the flow of information;
• assignment of tasks that are manifestly pointless, impossible to perform or incompatible with the employee's professional category;
• unjustified removal of duties;
• persistent threats concerning the employee's job;
• offensive, demeaning or disparaging remarks;
• isolation of the employee from the rest of their colleagues.

Not every professional demand or workplace conflict amounts to harassment. The legitimate exercise of the employer's powers of direction, supervision and discipline is lawful, provided that it respects the dignity, rights and personality of the employee.

#Sexual harassment

The Labour Code also treats as harassment any unwanted conduct of a sexual nature, whether verbal, non verbal or physical, that creates an intimidating, humiliating or offensive environment.

Physical contact is not required for sexual harassment to occur. Comments of a sexual nature, messages, innuendo, persistent invitations or intimidating behaviour may, in certain circumstances, constitute this form of harassment.

#Is harassment usually committed by line managers?

Although it may be committed by colleagues, subordinates, clients or third parties connected with the company's business, experience shows that the most frequent cases involve line managers and other hierarchical superiors.

A position of authority often makes it possible to exert psychological pressure through performance appraisals, the allocation of tasks, the organisation of work or the threat of professional consequences, creating a situation of dependence that is particularly harmful to the employee.

However, the employer's responsibility does not disappear where the harassment is committed by another employee. Whenever the employer is aware, or ought to have been aware, of the situation, it must act to bring it to an end.

#The employer's duty to ensure a healthy working environment

The employer's duties are not limited to paying remuneration and providing the material conditions for the performance of work.

Under the Labour Code, the employer is also required to provide good working conditions, both physical and moral, protecting the safety, health and dignity of its employees.

This duty entails, in particular:

• preventing harassment;
• adopting appropriate measures whenever a complaint is made;
• investigating the facts;
• preventing retaliation against the employee who made the complaint;
• ensuring a working environment that respects human dignity.

An employer's failure to act on known situations of harassment may give rise to civil liability for the damage suffered by the employee.

#Is the employee entitled to compensation?

Yes. Article 29 of the Labour Code expressly provides that the victim of harassment is entitled to compensation for the pecuniary and non-pecuniary damage suffered.

The amount of compensation will always depend on the seriousness of the facts, the duration of the harassment, the consequences suffered by the employee and the evidence produced in court.

#Can the employee terminate the contract for just cause?

Where the harassment, by reason of its seriousness and consequences, makes the continuation of the employment relationship practically impossible, the employee may terminate the employment contract for just cause under Article 394 of the Labour Code.

Termination for just cause allows the employee to bring the contract to an immediate end as a result of sufficiently serious unlawful conduct by the employer.

Where termination is based on harassment, the employee may be entitled to the compensation provided for in Article 396 of the Labour Code, calculated by reference to their length of service and the seriousness of the employer's conduct.

This compensation does not prevent the employee from also claiming separate compensation for the pecuniary and non-pecuniary damage suffered as a result of the harassment, under Article 29(4) of the Labour Code and the general rules of civil liability.

It should be borne in mind, however, that termination of the contract is subject to strict legal requirements, notably as to the time limit and the form of the notice given to the employer. It must therefore be carefully prepared and properly substantiated.

#How can harassment be proved?

Evidence is often the greatest difficulty in these proceedings.

Wherever possible, material capable of demonstrating the facts should be preserved, such as emails, written communications, text messages, lawfully admissible recordings, medical reports, witnesses or any other relevant evidence.

The earlier such material is gathered, the greater the likelihood of establishing the harassment in court.

#Conclusion

Harassment at work is neither a normal consequence of the employment relationship nor a risk that the employee must bear.

The law expressly protects the dignity of the employee, requires the employer to ensure a physically and morally healthy working environment and grants the victim the right to compensation for the harm suffered.

Whenever there are signs of harassment, it is essential to obtain legal advice as early as possible in order to assess the specific situation, preserve the available evidence and define the most appropriate strategy to protect the employee's rights.

This is a technical note published for information purposes. It does not constitute legal advice on any specific case. For advice, please contact the firm.