In this article, we analyze the main legal risks associated with the dismissal of employees protected under the parenthood regime, highlighting the importance of complying with procedural requirements, properly documenting the relevant facts, and adopting a preventive approach capable of reducing the risk of litigation, compensation costs and reputational damage for organizations.
Indeed, although many companies are aware that legislation affords enhanced protection to pregnant, postpartum and breastfeeding employees, there continues to be a significant lack of understanding regarding the effective scope of these protections and the specific procedures that must be observed before certain employment measures are adopted. Furthermore, case law demonstrates that courts remain particularly attentive to situations that may constitute direct or indirect discrimination related to the exercise of parental rights.
It should be noted that the special protection regime applicable to parenthood extends not only to pregnant, postpartum and breastfeeding employees, but also to employees who are on parental leave.
Consequently, any disciplinary procedure or decision to terminate an employment contract involving employees in these circumstances must be subject to particularly rigorous legal scrutiny.
One of the most common mistakes made by employers is to overlook the fact that certain dismissals require a prior opinion from the Commission for Equality in Labour and Employment (CITE).
Under the Portuguese Labour Code, the dismissal of a pregnant, postpartum or breastfeeding employee, as well as an employee on parental leave, is subject to a prior opinion from CITE.
Although such opinion does not automatically bind the employer’s final decision, its absence, or the failure to comply with the legally prescribed procedure, represents a significant legal risk and may seriously compromise the validity of the dismissal.
In practice, it is not uncommon for companies with seemingly solid grounds for terminating an employment contract to encounter significant procedural difficulties due to procedural errors committed at an early stage of the process.
Many organizations assume that where there is a very serious disciplinary infringement justifying dismissal for cause, or grounds allowing dismissal due to redundancy or collective dismissal, the employee’s parenthood status is of little relevance.
However, the law is clear in providing that the dismissal of a pregnant, postpartum or breastfeeding employee, or of an employee on parental leave, requires a prior opinion from CITE. If that opinion is unfavorable to the dismissal, the employer may only proceed following a court decision confirming the existence of a valid legal ground, and the relevant legal action must be filed within 30 days of notification of the opinion.
Furthermore, if the dismissal is declared unlawful, the employer may not oppose the employee’s reinstatement, and the employee is entitled, as an alternative to reinstatement, to compensation calculated in accordance with paragraph 3 of Article 392 of the Portuguese Labour Code.
Accordingly, when a dismissal is challenged before the courts, the employer’s ability to demonstrate that the decision was based exclusively on objective grounds unrelated to the exercise of parental rights becomes critically important.
For this reason, it is strongly recommended to ensure:
- Properly conducted and documented disciplinary proceedings;
- Consistent and well-documented performance evaluations;
- Objective records of the facts attributed to the employee;
- Clear justification of organizational decisions;
- Evidence of consistent treatment in comparable situations.
The absence of these elements may significantly undermine the company’s ability to defend itself in employment litigation.
On the other hand, before taking any measure likely to lead to the dismissal of an employee covered by the special parenthood protection regime, employers should carefully verify:
- The existence of sufficiently robust legal grounds;
- Whether a prior opinion from CITE is required;
- Full compliance with all applicable procedural requirements;
- The risks of potential discrimination claims;
- The consistency of the supporting documentation available.
An appropriate preventive assessment can help avoid lengthy litigation, substantial compensation costs and significant reputational damage to the organization.
Summing up, parenthood remains one of the areas in which legislators and courts afford the highest level of protection to employees.
In accordance with this background, the key issue is not merely whether grounds for dismissal exist, but also whether all legal requirements, including the possible need for a prior opinion from CITE, have been strictly complied with. The support of professionals with extensive experience in Employment Law can be decisive in ensuring the legal compliance of the entire process.
The Employment Law Department of Belzuz Abogados, S.L.P. – Sucursal em Portugal, composed of lawyers with extensive experience in disciplinary proceedings, individual and collective dismissals and employment litigation, is available to assist companies in assessing and managing these situations, ensuring a legally sound approach aligned with employment law best practices.