Labour Law Topics

FUNDAMENTAL RIGHTS

ARTICLES 16º TO 22ºJulie LeroyLetícia SilveiraRita 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 SpheresPublic 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…

ExceptionsTests that intend the

protection and security of the

employee and others

When the nature of the activity justifies

the tests

+A written

justification

or

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.