Labour Law Topics
FUNDAMENTAL RIGHTS
ARTICLES 16º TO 22º
Julie Leroy
Letícia Silveira
Rita Silva
Lisbon, 3rd of March.
Fundamental rights and the labour relation – how
to solve the problem?
•It is a problem that appears between the management, organization and ideals of the
employer and the fundamental rights of the employee.
• What rights? Not the ones that emerge from the labour relation, but the
ones that are intrinsic to the individual worker.
• Since there is a conflit of interests it is crucial to apply the proportionality principle,
in all its dimensions:
• Suitability,
• Necessity,
• Proportion, stricto sensu.
How to accomplish balance?
Grounds:
•To discuss the employee situation it is mandatory to apply the fundamental
rights in the relation of labour.
•It is a fact that the position of the employer leads to a compression of the right
of the employee (power position).
•How to accomplish balance? Articles 14º to 22º of the Labour Code.
Labour Code criteria to solve the conflit:
Professor João Leal Amado: the Labor Code adopts an equal solution, because it
ensures the personality rights of the employee, but also of the employer. The
question that arises is that if that is a good solution, because it seems to forget
the problem that exists in the labour relation, because it is a non equal relation.
Professor Regina Redinha: it is crucial to guarantee that “men and women, in
time and place of work, don’t leave his/her quality as citizens neither forget the
legal attributes of the humanity”.
(translation by student).
Article 16º of the Labour Code
• The
employer and the employee must respect the personality
rights of the other party, including respecting the intimacy of
private life.
• It concerns both the access and divulgation of aspects relating
to the personal and intimate sphere of the party, namely, the
familiar, affective and sexual life, the health status and political
and religious convictions of the employee.
Theory of the Three Spheres
Public sphere - concerning the
situations of public knowledge
Private sphere - which protection is
relative, because it can give in in the
case of a conflict between superior
rights and interests
Intimate sphere - concerning the
familiar and sexual life, health, and
political and religious convictions – the
protection is, in principle, absolute
Practical examples
• The employer cannot forbid the employee of marrying or having children;
• The employer cannot forbid the employee of having and affective or sexual
relationship;
• The employer cannot discriminate the employee when it concerns diseases
that do not affect the performance of work by the employee, such as
seropositivity, obesity and physical disabilities;
• The labour contract of an athlete, since he assumes the duty to keep his
physical condition adequate to his performance, includes medical exams;
• The ideological companies can also make sure that the employee do not
belongs to a contrary ideology - political parties or religious associations.
Article 17.º of the Labour Code
• Public sphere of the employee - the collection of personal data is, in principle, allowed;
• Private sphere - the article 17.º, number 1, a), establishes that the employer cannot
demand from the job seeker, or employee, information concerning the private life, unless
they are necessary and relevant to evaluate the ability of the employee and have a written
justification;
• Intimate sphere - the article 17.º, number 1, b), forbids the information requirement
relative to the health or pregnancy status, unless particular requirements concerning the
nature of the professional activity allow it, and it is provided a written justification.
• In the cases that it is forbidden the collection of the data, the employee can give them
voluntarily, since the Portuguese Civil Code allows the voluntary limitation of the
personality rights – article 81.º/2 of the Civil Code.
Article 18.º of the Labour Code
• The employer can only treat this kind of data after the notification of
the Comissão Nacional de Proteção de Dados;
• The number 4 adds that this notification must be followed with the
opinion of the works council, or 10 days after the consultation proof of
the opinions’ request;
• The number 2 establishes that this treatment is only allowed if the data
is necessary, adequate and proportional to the goals;
• According to the number 3 of article 17.º, the biometric data is
conserved during the necessary period to achieve the objectives, and
should be destroyed when the employee is transferred or when the
labour contract reaches its end.
Practical Example
A company cannot collect the employees’
fingerprints to control the hours of the
entrance/exit of them – only when special aspects
concerning security justify that
Article 19.º of the Labour Code
• This article regulates the medical tests and exams;
• The data concerning the psychological and physical health of the
employees belongs to their intimate sphere, and so its access or
divulgation violates, not only their right to privacy, but also their moral
and physical integrity;
• The employer cannot discriminate the employee when it concerns
diseases that do not affect the performance of work by the employee,
such as seropositivity, obesity and physical disabilities;
• Therefore, it is established an express prohibition relating the medical
tests and exams that are not relevant to their work/performance.
There are only two exceptions…
Exceptions
Tests that intend the
protection and
security of the
employee and others
or
+
A written
justification
When the nature of
the activity justifies
the tests
Practical Examples
• It is not licit to make medical tests destined to verify the alcoholism or
addiction situation of an employee/job seeker
• Abusive investigations on the mental health are also forbidden, like
abusive personality tests – for example, graphological tests
• In certain professions, such as bus driver or handling of hazardous
products, the psychological and physical conditions of the employee
may engender the security of the employee or others, and so the
control and the tests by the employer are justified
Distant surveillance: articles 20-21
Labour Code (Portugal)
• Art. 20 (1): distant surveillance forbidden to control professional performance
• Art. 20 (2): Exceptions  protection and safety / special demands inherent to
the activity (eg. Cameras at a bank)
• PRINCIPLE OF PROPORTIONALITY < CNPD resolution 61/2004
•1. Principle of necessity (princípio da necessidade)
2. Principle of adequacy (princípio da idoneidade)
3. Prohibition of excess (juízo de proporcionalidade em sentido estrito)
Eg. Surveillance in sanitary installations
Distant surveillance: articles 20-21
Labour Code
• Art. 20 (3): Information for the employees  purpose , existence and methods
but free method
• Art. 21 (1): AUTHORISATION FROM CNPD
3 aspects proportionality principle
art. 21 (4): advice workers council
but… still risk of claims
• Art. 21 (3): storage of obtained data  time necessary + always destroyment
when transfer er end of employment contract
Distant surveillance: Collective Labour
Agreement 68 (Belgium)
•No general legislation for distant surveillance < Collective Labour Agreement 68:
cameras
•Art. 4 (1): only allowed in four, limited, cases
• 1. Protection of safety and health
• 2. Protection of goods
• 3. Surveillance of production process
• 4. Surveillance of labour
•Art. 4 (2): Explicitly mention and describe purpose  art. 7 (2): violation
forbidden
Distant surveillance: Collective Labour
Agreement 68
* Art. 7 (2): PRINCIPLE OF PROPORTIONALITY
 lowest violation of privacy of employees
Eg. No cameras at places where no work (sanitary installations, cafetaria)
* Art. 9: information requirements
 inform representational body of employees
document general rules workplace
* Art. 13: use recordings only for explicit mentioned purpose < art. 4
Distant surveillance: a comparison
between Portugal and Belgium
* Biggest difference: scope of application
P: all methods of distant surveillance <-> B: only cameras
* Both general principle that use is forbidden, but difference in exceptions
P: general <-> B: limitative and restrictive
* Difference: authorisation requirement (but both information for employees)
P: authorisation CNPD necessary <-> B: no formal authorisation required
* PRINCIPLE OF PROPORTIONALITY: P = B
Article 22º of the Labour Code
Art. 34º CRP  it is prohibited to public entities to interfere with the correspondence
of the employee, telecommunications and other media.
The same is applied to private entities. Article 22º: the employee has confidentiality
over the content of personal messages and access to non-professional nature of
information sent, received or seen (for example: in the email).
However (22º/2) the employer has the power to establish rules for the use of
electronic equipment.
Problems that arise:
1. Going to the internet and acess to personal eletronic correspondence:
1.2. use to extra work purposes and possibility of producing less;
1.3. the employer has to support costs to have those kinds of service (internet);
1.4. professor Luís Menezes Leitão highlights the more vulnerability of the
company to spam and cyber attacks.
Conclusion: There is confidentiality of communications, but those do not allow the
worker to use the company's media for personal purposes. If the employer establish
rules for use and the same are violated, that violation can consist in disciplinary
infraction. But such a violation of the rules does not allow the employer to violates the
confidentiality of communications made.
What about registration of the information and communication?
The employer may make such records if they are previously informed to the
workers. Such records may only be made pursuant to article 279º of the Labour
Code
so the employer can take the costs of communications of the worker's
salary.
This registration may never be used to evaluate the employee.