This article seeks to introduce the differences (and similarities) in the German and Portuguese legal systems regarding special protection against dismissal.
In this sense, we will analyze (i) which categories of employees are covered by a special and extended protection against dismissal as well as (ii) which mechanisms are established in above-mentioned legal systems to realize the more extensive protection.
Due to the wide range of regimes, the analysis is divided into two parts:
i) Initially, the article will demonstrate the general characteristics of each legal system as well as the mechanisms to ensure protection in practice. The perhaps most well-known groups of employees who enjoy special protection against dismissal in this respect – regardless of the legal system – are members of representation bodies, disabled persons and employees covered by maternity protection.
ii) In a next step, groups of employees are identified who also enjoy special protection against dismissal, but who are probably rather unknown to most employers.
What special protection against dismissal is there in Germany?
Germany is well-known beyond its borders for its far-reaching protection against dismissal resp. strong employee protection law. While it is probably still common knowledge that after six months of service with the company (assuming that a certain threshold of regular employed employees is exceeded), every dismissal requires a reason for dismissal, It is often not known that (although temporarily) no ordinary dismissal of certain groups of employees is possible at all, or that this is only permissible in limited cases, i.e. with the approval of specific authorities.
There is a wide range of special protection against dismissals according to German law. The following are the most relevant in practice:
- Members of an employee representation enjoy special protection against dismissal for varying periods of time. This includes the members of the works council, the apprentice representative body, as well as their counterparts in the public sector and their substitutes for the duration of the member’s absence, regardless of whether the substitute member actually performs tasks for the representative body during the period of substitution. Furthermore, the members of the election committee, the election candidates and (limited in terms of time and number) the employees who invite to a works, or election meeting in accordance with Sec. 15 of the Dismissal Protection Act (KSchG) are protected against ordinary dismissals. The same applies to the representatives of severely disabled persons (Sec. 179 para. 3 sentence 1 SGB IX). The law does not provide any special protection against dismissals for members of the supervisory board;
- Severely disabled persons (and persons who are treated equal) also have special protection against dismissal in accordance with Sec. 168 of the German Social Code IX (SGB IX);
- Pregnant women also enjoy special protection against dismissal (whereby the employee can still notify the employer about the pregnancy up to two weeks after receipt of the notice of termination) or employees on maternity leave resp. until at least four months after giving birth in accordance with Sec. 17 of the Maternity Protection Act (MuSchG);
- Protection against dismissal during parental or carer leave is granted in accordance with Sec. 18 of the Federal Parental Allowance and Parental Leave Act (BEEG) and in Sec. 5 of the Caregiver Leave Act (PflegeZG) for (family) caregiver leave, generally from the time the leave of absence is requested.
- In the context of restructuring, special protection against dismissal according to collective agreements should also be considered. This is because many collective agreements provide for special protection against dismissal for employees above a certain age and/or a certain length of service. It is also common for collective agreements or works agreements to include protection clauses that exclude the ordinary (operational) dismissal of employees for a certain period of time at a specific location.
Comparable regulations in Portuguese Labour Law
The Portuguese Constitution provides for special protection of certain categories of employees against any forms of conditioning, constraint or limitation of the exercise of their labour functions. Therefore, among these forms of constraint, the most well-known is the employee’s dismissal.
In fact, although the Constitution prohibits the dismissal without fair cause, it also establishes a greater protection for these categories of employees:
a) Trade union representatives elected by the employees (art. 55, par. 6);
b) Members of the worker’s committees (art. 54, par. 4);
c) Employees covered by the maternity and paternity regime (art. 59, par. 2 (c) and art. 68, par. 3)
However, the Portuguese Constitution has a programmatic content in this matter, indicating that the legislator must retain the task of implementing which mechanisms fulfill the purpose of greater protection for those categories.
In this way, for this task, the Portuguese legislator enshrined different means to safeguard these categories of employees against dismissal. Nevertheless, other categories were mentioned as recipients of this protection.
Thus, the special protection against dismissal is effective as follows in the Portuguese Labour Law:
- Members of workers’ collective representation (trade union representatives, members of workers’ committees, workers’ representatives for safety and health at work, and other representative structures provided for by specific law, such as European works councils), according to art. 410 of the Portuguese Labour Code.
a) During disciplinary procedures for dismissal, the employee who has been preventively suspended of his/her job is always allowed to access places and carrying out activities that are included in the exercise of the corresponding functions, even in his/her workplace.
b) The dismissal of an employee who is a candidate for the governing bodies of a trade union or who has exercised functions in the same bodies within the last three years is presumed to be without fair cause.
c) The injunction for suspension of dismissal of these employees is not ordered unless the court finds that there is a serious likelihood of verification of the fair cause invoked by the employer.
d) The legal action regarding lawfulness of dismissal has an emergency nature.
e) In the event of unlawful dismissal, the employee is entitled to choose between the reinstatement and a compensation not less than the amount corresponding of the remuneration of six months in addition to seniority premiums.
- Disabled employees (employees with reduced working capacity, disability or chronic illness), according to art. 374, par. 3 of the Portuguese Labour Code:
a) Disabled employees have increased protection in dismissal due to unsuitability the job.
- Employees covered by the maternity and paternity regime (pregnant, postpartum, or breastfeeding employee and employees on parental leave), according to art. 63 of the Portuguese Labour Code, and the caregiver employee, in accordance with art. 101-F of the Portuguese Labour Code:
a) The dismissal of an employee who is in any of the situations referred above is presumed to be made without fair cause.
b) In this case, the dismissal requires a prior binding opinion from the public authority responsible for equal opportunities for men and women (CITE);
c) If CITE‘s opinion decides against the dismissal, the employer may only do so after judgement of a court recognizing the existence of a justification for the dismissal.
d) The dismissal shall only be issued if the judgement of the court is in favor of the dismissal and the court considers that there is a serious likelihood of verification of fair cause.
e) If the dismissal is found to be unlawful, the employer cannot oppose reinstatement of the employee; as an alternative to the reinstatement, the court may determine compensation amounting to between 30- and 60-days basic remuneration in addition to seniority premiums for each full year or fraction of seniority.
f) Also, the infringement of this legal regime constitutes a serious administrative offence, which sanction can amount up to EUR 9,960.
- The Portuguese Legal Framework, unlike the German, has established that the legal regime on termination is compelling. Therefore, its rules cannot be amended by the parties, e. by contract or collective bargaining agreement. Therefore, the employment contract can neither exclude any form of termination nor safeguard the employee from being covered by a redundancy. However, the criteria for the definition of a potential compensation and the deadlines for legal notices and, within legal limits, the amount of compensation in case of a termination of the contract may be regulated by collective bargaining agreement.
This article was originally written in English, by João Villaça from DCM | Littler and Kim Kleiner from Vangard | Littler, during her collaboration with DCM | Littler office, in Portugal.
