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Navigating Workplace Harassment: Combining Legal Frameworks for Effective Action

Publication: ZRVP

Addressing workplace harassment really requires quite comprehensive understanding of legal frameworks and investigation procedures. In light of the Methodology on preventing and combating harassment based on sex criteria and moral harassment in the workplace, which became effective on October 17, 2023 (“Methodology”), employers face the challenge of aligning this new guidance with existing disciplinary investigation practices under the Labor Code. This referral aims to unravel the complexities surrounding different types of workplace harassment investigations, offering insights into harmonizing methodologies and navigating disciplinary treatments to ensure a proactive and legally compliant approach.

Clarifying Employer Obligations in Addressing Workplace Harassment Based on Sex Criteria and Moral Harassment in the Workplace

In response to the question “Does the Methodology impose additional obligations on the employer beyond disciplinary investigation?”, it’s important to understand the implications of the Methodology which outlines a specific procedure that employers must follow when addressing these types of harassments. However, it’s currently unclear whether disciplinary investigations under Law No. 53/2003 – Labour Code remain applicable in cases of harassment based on sex criteria and moral harassment in the workplace.

Unveiling Key Amendments

Are you grappling with how to address harassment based on sex criteria and moral harassment in your workplace effectively?

 When it comes to harassment based on sex criteria and moral harassment, understanding the investigation procedures is crucial. The Methodology sets forth specific guidelines for employers. However, there’s ambiguity whether disciplinary investigations under the Labor Code still apply in these cases.

Almost all cases of harassment based on sex criteria and moral harassment in the workplace can be considered disciplinary violations. Therefore, we believe that, for these types of harassment, we can pursue both types of investigation simultaneously, in a combined manner, with the same committee ensuring that both the procedure indicated in the Methodology and the Labor Code are followed. 

Harmonizing Investigation Procedures: Methodology vs. Labor Code

Accordingly, we hold the opinion that internal documents issued by the employer, such as its internal regulations, should tune a joint procedure that combines the provisions of the Methodology and those of the Labor Code regarding the investigation into harassment based on sex criteria and moral harassment in the workplace.

Disciplinary Treatment

If the investigation reveals that an individual has committed acts of harassment based on sex criteria or moral harassment in the workplace, disciplinary sanctions provided by the Labor Code shall be applicable, unless other common regulations have to be applied, such as the provisions of the Administrative Code or Criminal Code.

However, one can identify a difference in the method/criteria for individualizing applicable sanctions. Against this background, the Labor Code outlines four clearly defined sanctioning criteria, whereas the Methodology requires the employer to consider other indications. Although these criteria may appear similar to those of common law at a first glance, they pertain to other aspects such as the gravity and scope of the acts of harassment, aiming to apply a proportional sanction to ensure that acts of harassment based on sex criteria and moral harassment are not treated as normal/tolerable behaviour.

Conclusions

Integrating the Methodology with existing legal frameworks is essential for addressing harassment based on sex criteria and moral harassment at the workplace comprehensively.

Although the practical application of the Methodology in its current form may pose certain obstacles to employers due to the lack of alignment both in terminology and substance with other regulatory acts in this matter, we believe that the Methodology rather complements than contradicts or nullifies the provisions regulating harassment according to the Labor Code, which also apply to harassment based on sex criteria and moral harassment in the workplace.

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