Country report, gender equality : how are EU rules transposed into national law? : Portugal 2019.
Date: 2019-10-23
Institutions: Directorate-General for Justice and Consumers
Subjects: Portugal, age discrimination, anti-discriminatory measure, application of EU law, equal pay, equal treatment, gender equality, maternity leave, national law, parental leave, paternity leave, pension scheme, report, sexual discrimination, sexual harassment, social security

Portugal 

2019 

EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.2 Gender Equality 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Gender equality 

How are EU rules transposed into 
national law? 

Portugal 

Maria do Rosário Palma Ramalho 

Reporting period 1 January 2018 – 31 December 2018 

2019   

Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Luxembourg: Publications Office of the European Union, 2019 

© European Union, 2019 

PDF  

 ISBN 978-92-76-01853-7 

ISSN 2600-0164  

doi:10.2838/105310  

  DS-BD-19-028-EN-N 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Gender equality – Portugal - 2019 

CONTENTS 

1 

2 

3 

4 

5 

6 

7 

Introduction ............................................................................................... 5 
Basic structure of the national legal system ............................................ 5 
1.1 
List of main legislation transposing and implementing the directives .......... 5 
1.2 
1.3 
Sources of law .................................................................................... 7 
General legal framework ............................................................................ 8 
Constitution ........................................................................................ 8 
2.1 
Equal treatment legislation ................................................................... 8 
2.2 
Implementation of central concepts ......................................................... 10 
General (legal) context....................................................................... 10 
3.1 
Sex/gender/transgender .................................................................... 11 
3.2 
Direct sex discrimination .................................................................... 12 
3.3 
3.4 
Indirect sex discrimination .................................................................. 13 
3.5  Multiple discrimination and intersectional discrimination ......................... 14 
Positive action ................................................................................... 14 
3.6 
Harassment and sexual harassment ..................................................... 17 
3.7 
Instruction to discriminate .................................................................. 20 
3.8 
3.9 
Other forms of discrimination .............................................................. 20 
3.10  Evaluation of implementation .............................................................. 20 
3.11  Remaining issues ............................................................................... 20 
Equal pay and equal treatment at work (Article 157 of the Treaty on the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54)
 ................................................................................................................. 21 
General (legal) context....................................................................... 21 
4.1 
Equal pay ......................................................................................... 22 
4.2 
Access to work, working conditions and dismissal .................................. 26 
4.3 
Evaluation of implementation .............................................................. 28 
4.4 
4.5 
Remaining issues ............................................................................... 29 
Pregnancy, maternity, and leave related to work-life balance for workers 
(Directive 92/85, relevant provisions of Directives 2006/54 and 2010/18)
 ................................................................................................................. 30 
General (legal) context....................................................................... 30 
5.1 
Pregnancy and maternity protection .................................................... 31 
5.2 
5.3  Maternity leave ................................................................................. 33 
Adoption leave .................................................................................. 35 
5.4 
Parental leave ................................................................................... 36 
5.5 
Paternity leave .................................................................................. 40 
5.6 
Time off/care leave ............................................................................ 41 
5.7 
Leave in relation to surrogacy ............................................................. 42 
5.8 
5.9 
Flexible working time arrangements..................................................... 43 
5.10  Evaluation of implementation .............................................................. 45 
5.11  Remaining issues ............................................................................... 45 
Occupational social security schemes (Chapter 2 of Directive 2006/54) .. 46 
General (legal) context....................................................................... 46 
6.1 
Direct and indirect discrimination ........................................................ 46 
6.2 
6.3 
Personal scope .................................................................................. 46 
6.4  Material scope ................................................................................... 47 
Exclusions ........................................................................................ 47 
6.5 
6.6 
Laws and case law falling under the examples of sex discrimination 
mentioned in Article 9 of Directive 2006/54 .......................................... 47 
Actuarial factors ................................................................................ 47 
6.7 
Difficulties ........................................................................................ 47 
6.8 
6.9 
Evaluation of implementation .............................................................. 47 
6.10  Remaining issues ............................................................................... 48 
Statutory schemes of social security (Directive 79/7) ............................. 49 
General (legal) context....................................................................... 49 
7.1 

3 

 
 
8 

9 

7.2 

Implementation of the principle of equal treatment for men and women in 
matters of social security .................................................................... 50 
7.3 
Personal scope .................................................................................. 50 
7.4  Material scope ................................................................................... 50 
Exclusions ........................................................................................ 51 
7.5 
Actuarial factors ................................................................................ 51 
7.6 
Difficulties ........................................................................................ 51 
7.7 
Evaluation of implementation .............................................................. 52 
7.8 
Remaining issues ............................................................................... 53 
7.9 
Self-employed workers (Directive 2010/41/EU and some relevant 
provisions of the Recast Directive) ........................................................... 54 
General (legal) context....................................................................... 54 
8.1 
Implementation of Directive 2010/41/EU .............................................. 54 
8.2 
8.3 
Personal scope .................................................................................. 55 
8.4  Material scope ................................................................................... 57 
Positive action ................................................................................... 57 
8.5 
8.6 
Social protection ............................................................................... 58 
8.7  Maternity benefits.............................................................................. 59 
Occupational social security ................................................................ 59 
8.8 
8.9 
Prohibition of discrimination ................................................................ 60 
8.10  Evaluation of implementation .............................................................. 60 
8.11  Remaining issues ............................................................................... 60 
Goods and services (Directive 2004/113) ................................................ 61 
General (legal) context....................................................................... 61 
9.1 
9.2 
Prohibition of direct and indirect discrimination ..................................... 61 
9.3  Material scope ................................................................................... 61 
Exceptions ........................................................................................ 61 
9.4 
Justification of differences in treatment ................................................ 61 
9.5 
Actuarial factors ................................................................................ 62 
9.6 
Interpretation of exception contained in Article 5(2) of Directive 2004/113 62 
9.7 
Positive action measures (Article 6 of Directive 2004/113) ...................... 62 
9.8 
9.9 
Specific problems related to pregnancy, maternity or parenthood ............ 62 
9.10  Evaluation of implementation .............................................................. 63 
9.11  Remaining issues ............................................................................... 63 

10  Violence against women and domestic violence in relation to the Istanbul 

Convention ............................................................................................... 64 
10.1  General (legal) context....................................................................... 64 
10.2  Ratification of the Istanbul Convention ................................................. 65 

11  Compliance and enforcement aspects (horizontal provisions of all 

directives) ................................................................................................ 66 
11.1  General (legal) context....................................................................... 66 
11.2  Victimisation ..................................................................................... 66 
11.3  Access to courts ................................................................................ 66 
11.4  Horizontal effect of the applicable law .................................................. 67 
11.5  Burden of proof ................................................................................. 68 
11.6  Remedies and sanctions ..................................................................... 68 
11.7  Equality body .................................................................................... 69 
11.8  Social partners .................................................................................. 71 
11.9  Other relevant bodies......................................................................... 71 
11.10  Evaluation of implementation .............................................................. 71 
11.11  Remaining issues ............................................................................... 71 
12  Overall assessment .................................................................................. 73 
Bibliography ..................................................................................................... 75 

4 

 
1 

Introduction 

1.1  Basic structure of the national legal system 

The Portuguese legal system is mainly a statutory law system, headed by the Portuguese 
Constitution  (PC)  and  developed  by  state  legislation.  Where  employment  and  industrial 
relations are concerned, the Labour Code (LC) is the essential statutory piece of legislation 
and  it  also  integrates  the  main  provisions  in  the  field  of  gender  equality  and  non-
discrimination principle on other grounds related to employment.  

In the field of employment and industrial relations (including in relation to gender equality 
and  non-discrimination  principles  in  this  field),  collective  agreements  are  also  a  key 
element of the system, but they cannot go against mandatory legal provisions.  

European Directives are generally transposed into national legislation by statutory law and 
not by collective agreements, which also applies to equality legislation. 

Apart from the area of employment, gender equality provisions are found in several acts, 
according to the various fields. 

1.2  List of main legislation transposing and implementing the directives 

The  main  legislation  in  the  field  of  gender  equality  and  non-discrimination  on  other 
grounds,  is  dispersed  in  several  sources,  which  have  transposed  European  Directives 
where appropriate and necessary. Among those sources, the following pieces of legislation, 
presented according to the subjects dealt by each one of them, are worth mentioning: 

- 

- 

- 

- 

Constitutional  grounds  of  equality  rights  and  provisions:  Portuguese  Constitution 
(PC), of 1976. 
Non-discrimination  principle  in  general  and  gender  equality  law  in  the  field  of 
employment  and  industrial  relations  and  as  regards  maternity,  paternity  and 
parental leave and other measures related to the reconciliation of professional and 
family life: Labour Code (LC), approved by Law No. 7/2009, of 12 February 2009. 
The  LC  and  the  complementary  legislation  to  the  LC  have  transposed  all  relevant 
Directives regarding sex discrimination and non-discrimination in general in the field 
of employment and industrial relations, as well as the maternity and parental leave 
directives. Repealed Directives in this area were transposed at an earlier stage by 
the former LC (of 2003) and prior to this Code by specific Acts on the several issues 
(mainly the Gender Equality Act,  of 1979, and the Maternity and Paternity Act, of 
1984).  With  the  publication  of  the  first  LC  in  2003  these  Acts  were  repealed,  and 
their provisions were integrated into the Code. The same system was kept by the LC 
of 2009 that is now in force.  
LC provisions in the field of non-discrimination in general, gender discrimination and 
maternity and reconciliation are applicable to employees of the private sector, but 
also to employees  of the public sector (Law No. 35/2014, of 20 June  2014, called 
‘Lei Geral do Trabalho em Funções Públicas’ – LGTFP (‘Public Servants General Law’), 
as indicated in Article 4 No. 1 (c) and (d) of this Law). 
In the field of equal pay, the LC rules are complemented by Law No. 60/2018, of 21 
August 2018, which has approved a number of measures for the active promotion of 
equal pay of men and women for equal work or work of the same value.  
Gender equality and occupational social security schemes: Decree-Law No. 12/2006 
of 20 January 2006 (trust funds that deal with professional social security schemes) 
and Decree-Law No. 307/97 of 11 November 1997 which has transposed Directive 
86/378/EEC, including the changes introduced by Directive 96/97/EC, into domestic 
legislation.  
Gender  equality  in  statutory  social  security  schemes:  ‘Lei  de  Bases  da  Segurança 
Social’ (‘Social Security General Law’) – Law No. 4/2007 of 16 January 2007) and 

5 

 
 
 
 
 
 
 
 
- 

- 

- 

Código  dos  Regimes  Contributivos  de  Segurança  Social’  (CRCSS)  (‘Social  Security 
Contribution System Code’), approved by Law No. 110/2009, of 16 September 2009. 
Non-discrimination principle in self-employment, including gender equality: Law No. 
3/2011,  of  15  February  2011,  which  establishes  the  general  framework  for  the 
protection of self-employed persons as  regards the prohibition of discrimination in 
the access to and in the development of independent work in the private sector, in 
the public sector, and in the cooperative sector. This Law has transposed Directive 
2000/43, Directive 2000/78 and (partially) Directive 2006/54. 
Gender  equality  in  the  access  to  and  provision  of  goods  and  services:  Law  No. 
14/2008, of 12 March 2008, which has transposed Directive 2004/113; this Law was 
amended  by  Law  No.  9/2015,  of  11  February  2015,  in  view  of  the  Test-Achats 
judgment.  
Gender equality in decision-making: Law No. 3/2006, of 21 August 2006 (known as 
‘Lei  da  Paridade’  –  ‘Parity  Law’),  imposing  quotas  for  national  Parliamentary 
elections, 
local  political 
representatives; Law No. 62/2017, of 1 August 2017, regarding women on boards, 
imposing a minimum representation of the less represented sex on executive boards 
and surveillance boards of public companies and private listed companies. 

for  European  Parliamentary  elections  and 

for 

6 

 
 
 
1.3  Sources of law 

The main source of gender equality law in Portugal is national legislation.  

Under  the  condition  that  they  are  ratified  by  Portugal,  international  treaties  are  also 
integrated  into  the  national  legal  system,  and  placed  directly  under  the  Portuguese 
Constitution and above other internal legislation (Article 8(2) of the PC). EU Law is also 
applicable  at  domestic  level  either  directly  (as  in  the  case  of  EU  Treaties  and  EU 
Regulations) or by way of transposing the Directives into national legislation (Article 8(3) 
of the PC). 

The  Portuguese  legal  system  is  a  statutory  system,  so  case  law  is  important,  because 
previous court decisions are taken into account, but it does not stand as an autonomous 
source of law, as judgments do not form legal precedent.  

In  exceptional  situations,  called  ‘Uniformização  de  Jurisprudência’  (Judgments  of  the 
Supreme Court solving differences of opinion coming from prior judgments in relation to 
the interpretation of a specific legal provision), the jurisprudence  of the Supreme Court 
forms judicial precedent.  

Also, judgments with general binding value issued by the  Constitutional Court, where a 
specific provision is declared unconstitutional, are a substantive source of law, in the sense 
that the specific provision is no longer applicable and must be changed.  

In short, only in these specific and exceptional situations is case law more than an indirect 
source of law. 

Opinions  of  equality  bodies  or  quasi-judicial  bodies  and  authoritative  scholarly 
interpretations  (‘doutrina’)  are  not  a  source  of  law  but  play  an  important  role  as  non-
binding opinions and are often quoted in judicial action.  

In the field of employment and industrial relations, collective agreements at branch or at 
company level are an autonomous  source of law, and the same goes  for administrative 
regulation of employment relations – the ‘Portaria de Extensão’ (‘Extension Regulation’), 
that extends the scope of collective agreements to employers and employees not covered 
initially, and the ‘Portaria de Condições de Trabalho’ (‘Employment Conditions Regulation’) 
that  regulates  employment  relations  in  the  absence  of  a  collective  agreement.  Finally, 
company  regulations  issued  by  the  employer  (‘Regulamento  interno  de  empresa’)  and 
common practices within the companies or related to a specific profession (‘usos laborais’) 
are also autonomous sources of law in this field (Article 1 and Article 2 of the LC).  

These sources cannot go against imperative legal provisions (Article 3 of the LC), but in 
practice they play a very important role, especially collective agreements.  

7 

 
 
 
 
 
 
 
 
 
 
 
2 

General legal framework 

2.1  Constitution 

2.1.1  Constitutional ban on sex discrimination 

The Portuguese Constitution (PC) establishes a general principle of non-discrimination on 
several  grounds.  Sex  is  explicitly  indicated  as  a  discriminatory  ground  and  sex 
discrimination is explicitly prohibited (Article 13(2) of the PC). 

2.1.2  Other constitutional protection of equality between men and women 

As well as the explicit prohibition of sex discrimination in Article 13(2), equality between 
men and women is addressed in several other provisions of the PC. 

Article  9  of  the  PC,  on  the  fundamental  tasks  and  objectives  of  the  Portuguese  State, 
considers  the  active  promotion  of  equality  between  men  and  women  as  a  fundamental 
task and goal of the Portuguese State (Article 9(h)). 

Also, the PC develops the general prohibition of sex discrimination established in Article 
13(2) in several areas: equal opportunities in access to employment  (Article 58(2)(b)); 
equal  pay  (Article  59(1)(a));  reconciliation  of  work  and  family life  (Article  59(2)(b)  and 
Article 67(1)(h)); and protection of pregnancy, maternity and paternity (Article 68).  

All provisions indicated are qualified as fundamental rights by the Constitution, i.e. they 
rank higher among the constitutional rights. In this capacity, these provisions prevail over 
other constitutional provisions and over any other legal provisions.  

Some  of  these  provisions  are  addressed  to  the  State  itself  (‘programmatic’  provisions), 
while  others  are  immediately  applicable.  Only  the  second  category  of  provisions  have 
horizontal effect, in the sense that they are immediately binding provisions both to public 
and to private entities and can therefore also be invoked between private parties (Article 
18(2) of the PC). The non-discrimination principle (including on the ground of sex), the 
equality  principle  in  the  access  to  employment,  or  the  equal  pay  principle  are  good 
examples  of  immediately  binding  provisions  that  can  also  be  invoked  between  private 
parties.  

2.2  Equal treatment legislation 

In Portugal, equal treatment legislation is dispersed in several pieces of legislation, relating 
to different fields. 

As  regards  employment  and  maternity  and  reconciliation  issues,  equal  treatment 
provisions are integrated in the LC, but in autonomous sections, that address equality and 
non-discrimination in general (Articles 23 to 28); harassment (Article 29); gender equality 
(Articles 30 to 32); and maternity, paternity and reconciliation rights (Articles 33 to 65).  

In certain areas, the  LC is complemented by more specific legislation, as in the case of 
equal pay, where the LC regulation is complemented by Law No. 60/2018, of 21 August 
2018,  and  in  the  case  of  maternity,  paternity  and  reconciliation  rights,  where  the  LC 
regulation  is  complemented  by  Law  No.  91/2009,  of  9  April  2009  (social  protection 
attached to these rights) and by Law No. 102/2009, of 10 September 2009 (special health 
and safety measures for pregnant working women and women who have given birth). 

As  regards  other  issues  (self-employment,  access  to  and  supply  of  goods  and  services, 
social security and gender-balance in company boards), there are specific Acts on equal 
treatment in each area. These Acts are listed above.  

8 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Both  in  the  LC  and  in  the  specific  Acts  on  the  several  issues  indicated  above,  sex 
discrimination is prohibited.  

In  addition  to  sex,  the  LC  covers  the  following  discrimination  grounds:  age,  ancestry, 
sexual  orientation,  sexual  identity  and  sexual  reassignment,  marital  status,  family 
situation,  economic  situation,  level  of  education,  origin  or  social  condition,  genetic 
features, disability, chronic disease or reduced capacity for work, nationality, race or ethnic 
origin,  place  of  birth,  native  language,  religion,  political  or  ideological  convictions,  and 
trade union affiliation (Article 24(1) of the LC).  

9 

 
 
 
3 

Implementation of central concepts 

3.1  General (legal) context 

3.1.1  Surveys on the definition, implementation and limits of central concepts of gender 

equality law 

The author is not aware of surveys or reports published in Portugal over the last five years 
that provide insights into the legal definition, implementation and limits of central concepts 
of gender equality law, i.e. sex/gender/transgender, direct and indirect sex discrimination, 
multiple  and  intersectional  discrimination,  positive  action,  harassment  and  sexual 
harassment, instruction to discriminate. 

3.1.2  Other issues 

Despite the lack of studies in relation to the central concepts of gender equality law, it is 
commonly recognised that some concepts linked to sex discrimination are more difficult to 
understand and may give ground to different interpretation. 

This is the case of the notions of indirect discrimination, work of the same value, positive 
action, intersectional discrimination and harassment. Despite being well established in the 
law, these notions do not seem clear to the various stakeholders, when it comes to their 
practical  implementation  in  case  law,  by  the  employers  in  company  regulations,  by  the 
social partners in collective agreements and even by the labour inspection services. 

3.1.3  General overview of national acts 

All  acts  dealing  with  gender  equality  prohibit  direct  and  indirect  sex  discrimination  and 
(sexual) harassment, but not all of them define such notions. Central concepts in this field 
–  such  as  direct  and  indirect  sex  discrimination  or  harassment  or  positive  action  –  are 
defined  in  the  LC,  but  also  in  the  legislation  concerning  gender  equality in independent 
work, and in the legislation on gender equality in the access to and  provision for goods 
and services.  

3.1.4  Political and societal debate and pending legislative proposals 

In recent years, two central concepts of gender equality law have been widely debated in 
Portugal not only at a political level but in several other forums: the notion of harassment 
and the notion of positive action. 

In  relation  to  harassment,  this  debate  gave  ground  to  the  change  of  the  LC,  by  Law 
No. 73/2017, of 16 August 2017, which introduced several measures intended to promote 
a more active fight against harassment practices in employment relations and to protect 
harassment victims from retaliation. 

The debate relating to the notion and justification of positive action was produced in the 
context  of  the  approval  of  quota  legislation  in  company  boards  and  company  plans  for 
gender  equality  in  promotion  and  in  the  access  to  management  positions  (Law 
No. 62/2017, of 1 August 2017). This piece of legislation is being applied now, within the 
time limits established to make the necessary changes, especially on company boards, so 
it is still too soon to assess the practical implementation of the changes introduced in the 
legislation. 

10 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.2  Sex/gender/transgender 

3.2.1  Definition of ‘gender’ and ‘sex’ 

In Portugal, there is traditionally no definition of sex or gender in the law nor in case law, 
nor in the opinions of equality bodies, and including the legislation on self-determination 
of gender and change of legal sex (Law No. 38/2018, of 7 August 2018). 

The  only  exception  is  the  new  legislation  on  equal  pay  and  pay  transparency  (Law  No. 
60/2018, of 21 August 2018), which defines sex in Article 2(1)(a) as follows: ‘sex are the 
biological  characteristics  that  distinguish  humans  as  woman  or  man,  used  as  a 
demographic criteria’.1 However, it is important to point out that this definition is strictly 
valid for the purposes of equal pay and pay transparency, as indicated in the same article 
of Law No. 60/2018.  

3.2.2  Protection of transgender, intersex and non-binary persons 

In  the  field  of  employment,  the  Labour  Code  explicitly  prohibits  discrimination  on  the 
ground of gender identity and of gender reassignment, in Article 24(1). 

There are no similar provisions in the acts that address non-discrimination in general and 
gender equality in self-employment and in the access to and supply of goods and services. 
However, the general clause on non-discrimination established in the Constitution (Article 
13), which expressly mentions sex and sexual orientation as grounds for discriminatory 
practices and prohibits such practices, can be in invoked directly in such areas, since it is, 
as explained above, an immediately binding provision.  

Also,  it  is  to  be  noted  that  once  established  that  the  questions  related  to  transgender, 
intersex and non-binary persons are gender equality issues, the legislation that deals with 
sex discrimination in different areas (social security, access to and provision for goods and 
services, or self-employment) is to be considered applicable to those issues. 

3.2.3  Specific requirements 

In  Portugal,  transgender,  intersex  and  non-binary  persons  are  protected  from 
discrimination  under  the  categories  of  gender  identity,  sex  characteristics  and  gender 
expression.  

In this sense, Law No. 38/2018, of 7 August 2018, on the right to the self-determination 
of gender identity and to the protection of the sexual characteristics (Article 1), establishes 
a general prohibition of direct or indirect discrimination on the grounds of gender identity, 
gender characteristics and gender expression (Article 2 No. 1). 

Prior to Law No. 38/2018, of 7 August 2018, the change of legal gender was dealt with by 
Law No. 7/2011, of 15 March 2011. Under this legislation, the medical confirmation of the 
specific gender status of transgender, intersex and non-binary persons was necessary for 
the purpose of the change of the legal gender, as this situation was viewed as a  health 
issue.  Therefore,  the  evidence  of  a  ‘gender  identity  disorder’,  should  be  declared  by  a 
medical and psychological evaluation (Articles 2 and 3).  

However,  this  Act  was  repealed  by  Law  No.  38/2018,  of  7  August  2018.  This  Law 
establishes a civil procedure for the recognition of gender identity that includes the change 
of  the  legal  gender  and  of  the  name  (Articles  6  to  10),  that  is  much  simpler  than  the 
previous procedure. In the course of this procedure, a medical evaluation is not required 
except in the case of minors who may start the procedures after reaching the age of 16, 

1   This is a rough and unofficial translation by the author. 

11 

 
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
with the assistance of their parents (as legal representatives of the minors, under Articles 
122 and 123 of the Civil Code).2 

Also, during this procedure, it is strictly forbidden to ask the person for any proof of having 
been  submitted  to  sterilisation,  sex-change  surgery,  hormonal  treatment  or  any  other 
medical or psychological treatment as a condition to the  change of legal sex (Articles 7 
and 9 of Law No. 38/2018, of 7 August 2018).   

As to the marital status of the person, marriage per se is no obstacle to the procedure of 
changing the legal gender status, but the change of sex is a legal ground for divorce or for 
the annulment of marriage.   

3.3  Direct sex discrimination 

3.3.1  Explicit prohibition  

Direct sex discrimination is explicitly prohibited in Portugal in relation to employment (LC, 
Article 25(1)), in relation to self-employment (Article 5 of Law No. 3/2011, of 15 February), 
and  in  relation  to  the  access  to  and  supply  of  goods  and  services  (Article  1  of  Law  No. 
14/2008, of 12 March 2008). 

Direct discrimination is defined in general in the LC (Article 23(1)(a)) as:  

‘any situation where someone is submitted to a less favourable treatment than the 
treatment  actually  or  virtually  applied  to  someone  else  in  a  comparable  situation, 
due to a discriminatory ground’.3  

Discriminatory grounds are indicated in the provision that prohibits this kind of behaviour 
(Article 24(1)). This notion applies to direct gender discrimination. 

Still in the field of employment relations, discrimination is also defined in Law No. 60/2018, 
of 21 August 2018 (Article 2(1)(c)), for the purposes of gender discrimination in pay.  

A similar general notion of direct discrimination can be found in Article 5(2)(a) of Law No. 
3/2011, of 15 February 2011 (non-discrimination in self-employment). This notion applies 
to direct gender discrimination in this area.  

Direct sex discrimination is defined in Article 3(a) of Law No. 14/2008, of 12 March 2008 
(gender equality in the access to and supply of goods and services) as:  

‘any situation where someone is submitted to a less favourable treatment than the 
treatment actually or virtually applied to someone else in a comparable situation, on 
the ground of sex’.4  

In  the  author’s  view  these  notions  are  in  line  with  EU  definitions  of  direct  sex 
discrimination. 

2   This is another difference between this legislation and Law No. 7/2011, of 15 March 2011, as in the former 
legislation the civil procedure to change the legal gender was forbidden for minors (i.e., young persons 
under 18 years old). The extension of the right to start the civil procedure intended to change the legal 
gender of minors over 16 was the most debated issue of the new law, as, in its first version, the legal 
provision indicated that minors could start the procedure without the knowledge or consent of their parents 
and even without a medical evaluation. However, the Portuguese President exercised his veto powers to 
stop the law from entering into force and the provision was changed as indicated above and entered into 
force in this corrected version.  

3   This is a rough and unofficial translation made by the author. 
4   This is a rough and unofficial translation made by the author. 

12 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
3.3.2  Prohibition of pregnancy and maternity discrimination 

Under  Articles  24(1)  and  25(6)  of  the  LC,  discrimination  on  the  ground  of  pregnancy, 
maternity, paternity and the exercise of parenthood rights is prohibited. However, in the 
author’s  opinion  the  compliance  of  national  legislation  with  Article  2(2)(c)  of  Directive 
2006/54 is not perfect, because there is no explicit mention in the law that pregnancy and 
maternity discrimination is to be qualified as direct sex discrimination.  

3.3.3  Specific difficulties 

The  prohibition  of  direct  sex  discrimination  is  generally  well  understood  and  causes  no 
special problem in Portugal. However, some difficulties may arise as regards discrimination 
on the grounds of pregnancy, maternity and reconciliation issues.  

Despite  the  recognition  of  these  practices  as  discrimination,  the  absence  of  their  clear 
qualification  as  direct  sex  discrimination  in  the  law  may  have  a  negative  impact  in  the 
application of these provisions by the Courts, which do not always establish a clear link 
between the two issues, and therefore do not always apply the more favourable provisions 
on gender discrimination (for instance, provisions establishing a wide notion of pay, or the 
reversal of the burden of proof).  

3.4  Indirect sex discrimination 

3.4.1  Explicit prohibition 

In Portugal, indirect sex discrimination is explicitly prohibited in relation to employment 
(LC, Article 25(1)), in relation to self-employment (Article 5(1) of Law No. 3/2011, of 15 
February 2011) and in relation to gender equality in the access to and supply of goods and 
services (Article 1 of Law No. 14/2008, of 12 March 2008). 

Indirect discrimination is defined in general in the LC (Article 23(1)(b)) as:  

‘any  situation  where  a  rule,  criterion,  or  practice  apparently  neutral  can  place 
someone, due to a discriminatory ground, in a disadvantaged position in comparison 
to others, unless that rule, criterion or practice is objectively justified by a legitimate 
goal and the means to reach that goal are adequate and necessary’.5  

This general notion applies to indirect gender discrimination. 

As regards self-employment, a similar notion is established in Article 5(2)(b) of Law No. 
3/2011, of 15 February 2011 (non-discrimination in self-employment). This notion applies 
to indirect gender discrimination in this area.  

As  regards  gender  equality  in  the  access  to  and  supply  of  goods  and  services,  indirect 
discrimination is defined in Article 3(b) of Law No. 14/2008, of 12 March, as:  

‘any  situation  where  a  rule,  criterion,  or  practice,  apparently  neutral  can  place 
someone  in  a  disadvantaged  position  in  comparison  to  a  person  of  the  other  sex, 
unless that rule, criterion or practice is objectively justified by a legitimate goal and 
the means to reach that goal are adequate and necessary’.6 

In  the  author’s  view  these  notions  comply  with  the  EU  definition  of  indirect  gender 
discrimination. 

5   This is a rough and unofficial translation made by the author. 
6   This is a rough and unofficial translation made by the author. 

13 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
3.4.2  Statistical evidence 

The  author  has  no  knowledge  of  the  use  of  statistical  evidence  in  order  to  establish  a 
presumption of indirect sex discrimination. 

3.4.3  Application of the objective justification test 

To the author’s knowledge, there is no case law on this subject. 

3.4.4  Specific difficulties 

The absence of case law relating to indirect discrimination makes it difficult to assess how 
the concept of indirect discrimination is interpreted and applied in practice.  

Also,  at  the  level  of  companies  and  in  collective  bargaining,  the  very  notion  of  indirect 
discrimination seems difficult to understand, so its practical use to disclose discriminatory 
practices is limited. 

3.5  Multiple discrimination and intersectional discrimination7 

3.5.1  Definition and explicit prohibition 

intersectional  discrimination  (i.e.  discrimination  resulting 

Multiple discrimination (i.e. discrimination based on two or more grounds simultaneously) 
and 
from  grounds  of 
discrimination which interact to produce a new and different type of discrimination) is not 
explicitly addressed and defined in Portuguese legislation.  

The author is not aware  of any proposals  aiming to incorporate the concept of multiple 
discrimination and/or the concept of intersectional discrimination in the legislation. 

However, the absence of such notions in the law do not prevent the use of more than one 
discrimination  ground  in  a  possible  claim.  In  the  author’s  opinion,  the  legislative 
architecture  of  the  protection  against  discrimination  in  Portugal  already  allows  for  the 
judicial  recognition  of  multiple/intersectional  discrimination,  especially  in  the  area  of 
employment, because the LC treats the several discriminatory grounds all together, and 
only afterwards further elaborates on gender equality provisions. 

Nevertheless, the absence of case law with this scope makes it  hard to assess if such a 
difficulty would arise in practice or not. 

3.5.2  Case law and judicial recognition 

As  already  indicated,  there  is  no  case  law  addressing  multiple  discrimination  and/or 
intersectional discrimination, where gender is one of the grounds at stake. 

3.6  Positive action 

3.6.1  Definition and explicit prohibition 

Positive action is indirectly allowed by the Portuguese Constitution, in Article 9(h). In fact, 
by considering the active promotion of equality between men and women as a fundamental 
task  of  the  Portuguese  State,  this  provision  allows  for  positive  action  in  promoting  this 
goal. 

7   See for more information Fredman, S. (2016) Intersectional discrimination in EU gender equality and non-

discrimination law European network of legal experts in gender equality and non-discrimination, available at 
https://www.equalitylaw.eu/downloads/3850-intersectional-discrimination-in-eu-gender-equality-and-non-
discrimination-law-pdf-731-kb. 

14 

 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
                                                   
As regards employment, the LC explicitly allows for positive action measures, which are 
considered  as  non-discriminatory  measures,  provided  that  they  are  established  on  a 
temporary basis in order to correct a factual discrimination which already exists (Article 
27).  

Positive action is defined by Article 27 of the LC as:  

‘a legal measure of limited duration in favour of a group, placed in a disadvantaged 
situation because of a discrimination ground, and aiming to grant equal conditions 
in the access to or in the exercise of legal rights or correcting a factual discrimination 
which already exists’.8  

In the author’s view, this definition of positive action complies with the EU definition found 
in Article 157(4) TFEU. 

In the area of access to and supply of goods and services, Law No. 14/2008, of 12 March 
2008 (which transposed Directive 2004/113), allows for positive action measures in Article 
4(7), which states as follows:  

‘the guarantee of full equality between men and women does not prejudice specific 
positive measures, already in place or to be implemented in order to prevent or to 
compensate factual inequalities or disadvantages related to sex’.9 

This rule formally complies with Article 6 of Directive 2004/113.  

3.6.2  Conceptual  distinctions  between  ‘equal  opportunities’  and  ‘positive  action’  in 

national law 

In the Portuguese legal system, the equality principle and the non-discrimination principle 
are  viewed  as  the  general  principles  in  this  area,  and  positive  action  is  viewed  as  a 
development of such principles. There is no vertical relationship between the two concepts, 
as positive action is an instrument intended to implement the goal of equal opportunities. 

3.6.3  Specific difficulties 

To the author’s knowledge, there are no specific difficulties in relation to positive action in 
Portugal. In practice, positive action is often used to pursue specific goals in the field of 
employment and in relation to several grounds of discrimination. Some provisions of the 
LC are good examples of this specific use of positive action:  

- 

- 

- 

In order to fight unemployment – which is consistently higher among the younger 
generation – and long-term unemployment, the LC facilitates the conclusion of fixed-
term employment contracts with young persons and long-term unemployed persons 
(Article 140(4) of the LC). This provision also fights indirect age discrimination. 

In  relation  to  discrimination  on  the  grounds  of  maternity  and  parenthood,  Article 
30(3) of the LC states that, when professional training regards economic activities 
as being dominated by workers of one sex, workers of the under-represented  sex 
have priority in access to professional training; the same priority is generally granted 
to  workers  with  low  academic  training  or  no  specific  skills,  as  well  as  to  workers 
responsible  for  single-parent  families,  and  to  those  who  have  been  on  leave  for 
reasons related to maternity, paternity or adoption. This provision may clearly favour 
women, since they are more likely to be in the situations described by the rule. 
In relation to discrimination and collective agreements, Article 492(2)(d) of the LC 
states that collective agreements should establish ‘measures that contribute to the 

8   This is a rough and unofficial translation made by the author. 
9   This is a rough and unofficial translation made by the author. 

15 

 
 
 
 
 
 
 
 
 
 
 
 
                                                   
effective implementation of equality and the non-discrimination principle’. According 
to this rule, equality plans and concrete measures for the promotion of equality (on 
several grounds, including sex) at professional or company level can be defined by 
collective  agreements  directly.  These  measures  can  include  positive  action  and 
preferential treatment, if, in the concrete situation, they meet the legal requirements 
for such action measures. However, this rule is a non-binding recommendation, since 
there are no sanctions attached to the absence of such measures or plans. 

Also,  outside  the  LC  but  with  a  direct  impact  in  employment  relations,  it  is  worth 
mentioning the recent legislation on quotas for company boards (Law No. 62/2017, of 1 
August 2017), where a specific provision (Article 7) imposes upon employers the duty to 
instate gender equality plans intended to promote gender-balanced access to leadership 
positions  in  the  company.  Given  the  fact  that  women  are  less  represented  in  those 
positions, this provision is a positive action in the sense of positive action as in Article 27 
of the LC. 

In short, positive action is accepted as a normal tool in the Portuguese legal system, in 
the  field  of  employment,  in  relation  to  non-discrimination  in  general  and  to  sex 
discrimination in particular.  

3.6.4  Measures to improve the gender balance on company boards 

In Portugal, intervention has increased in recent years in the field of gender equality in 
decision making, especially as regards the presence of women on company boards.  

In  this  area,  the  Government  approved  a  Resolution  in  2012  designed  to  promote  the 
increased  participation  of  women  on  the  boards  of  public  and  private  companies,  and 
following this Resolution other legislative measures have been established. However, for 
some years, these measures have gone much further in relation to public administration 
and state-owned companies than in relation to private companies.  

As regards public companies, Decree-Law No. 133/2013, of 3 October 2013 (‘Estatuto das 
Empresas  Públicas’  –  ‘General  Features  of  Public  Companies’),  establishes  that  the 
governance  boards  of  public  companies  (administration  board  and  surveillance  board) 
must aim to have both men and women as members, and  establishes the obligation of 
public companies to put equality plans in place. In the same sense, Law No. 67/2013, of 
28  August  2013  (‘Lei-Quadro  das  Entidades  Reguladoras’  –  ‘General  Features  of 
Administrative Independent Agencies for the Monitoring of Economic Activity in the Private 
and in the Public Sector’), establishes that the board  of these agencies must include at 
least 33 % of the members of both sexes, and that the presidency of this board must be 
occupied by persons from both sexes alternatively.  

In 2017, a major development occurred in this area, with the approval of Law No. 62/2017, 
of 1 August 2017, regarding women on boards. This Law, applicable to public companies 
and  other  public  entities  (at  the  central,  regional  or  local  level),  and  to  private  listed 
companies, establishes a minimum representation of women on executive boards and on 
surveillance boards: 33.3 %, as regards public companies, from January 2018 onwards; 
and, as regards private listed companies, 20 % from January 2018 onwards but increasing 
to 33.3 % from January 2020 (Articles 4 and 5 of Law No. 62/2017). These provisions are 
binding  and  if  the  set  levels  are  not  achieved  within  the  indicated  time-limits,  the  act 
nominating the members of the executive and/or surveillance boards may be declared null 
and void, and the company in question may be subjected to fines and other administrative 
sanctions until a valid nomination is produced (Article 6 of Law 62/2017). 

Despite the fact that this piece of legislation is only applicable to listed companies (and 
not many Portuguese companies are listed), this is an important step in the direction of 
more gender-balanced participation in decision-making. 

16 

 
 
 
 
 
 
 
 
At another level, over the years the successive National Plans for Gender Equality approved 
by the governments have repeatedly emphasised the importance of a gender balance on 
the boards of private companies as a condition for good governance. Accordingly, several 
campaigns were developed by the Government targeting private companies in this sense.  

3.6.5  Positive action measures to improve the gender balance in other areas 

In  the  political  area,  gender  quotas  have  been  imposed  for  elections  for  the  National 
Parliament, for the European Parliament and for local political representatives, by Law No. 
3/2006,  of  21  August  2006  (known  as  the  ‘Parity  Law’  –  ‘Lei  da  Paridade’).  This  Law 
establishes that the lists presented by political parties for these elections must include at 
least 33.3 % women, in eligible positions. 

These rules are binding to the extent that if the list of candidates does not comply with 
the proportion requirements, the party responsible is officially notified and requested to 
correct the list. If such correction is not made, the list is accepted with reservations and 
the  party  responsible  suffers  a  serious  reduction  of  public  subsidies  for  campaign 
expenses. 

In  fields  other  than  employment,  company  boards  and  political  representation,  and 
including  the  area  of  goods  and  services  (where,  as  indicated  above,  positive  action  is 
expressly  mentioned  in  the  law)  the  author  has  no  information  regarding  the  practical 
implementation of positive measures.  

3.7  Harassment and sexual harassment 

3.7.1  Definition and explicit prohibition of harassment 

In Portugal, harassment is explicitly prohibited in the area of employment (Article 29(1) 
of the LC, which is also applicable to civil servants), in the area of self-employment, but 
only in relation to discriminatory harassment and sexual harassment (Article 5(5) and (6) 
of Law No. 3/2011 of 15 February 2011) and in the area of access to and supply of goods 
and services, also in relation to discriminatory harassment and sexual harassment (Article 
3(c) and (d) and in Article 4(4) of Law No. 14/2008 of 12 March 2008). It is important to 
point out that in the LC (Article 29) there is a broader notion of harassment, which also 
includes moral harassment practices that are not based  on a discriminatory ground.  On 
the  contrary,  in  relation  to  self-employment  and  access  to  and  supply  of  goods  and 
services,  since  the  legislation  specifically  addresses  gender  equality,  the  notion  of 
harassment  is  narrower,  in  the  sense  that  it is  explicitly linked  to  discrimination  and to 
sexual harassment.   

Harassment  and  sexual  harassment  are  defined  in  national  legislation  in  line  with  the 
definitions given by Directive 2006/54 in Article 2(1)(c) and (d) and Directive 2004/113/EC 
in  Article  2(c)  and  (d),  with  some  small  differences  between  them,  according  to  the 
situation  in  question  (employment,  self-employment  or  goods  and  services)  and  in  the 
case of employment with a scope wider than the concept of the Directive 2006/54. 

In  the  employment  area,  these  concepts  are  addressed  in  Article  29(2)  (concept  of 
harassment) and in Article 29(3) (concept of sexual harassment) of the Labour Code (as 
amended by Law No. 73/2017, of 16 August 2017) as follows:  

- 

- 

(Article 29(2) of the LC): ‘Harassment is the unwanted behaviour, adopted towards 
a candidate for a job, an employee or a trainee, that intends or results in personal 
constraint or in the breach of the person’s dignity or in the creation of an intimidating, 
hostile, degrading or humiliating environment’;  
(Article  29(3)  of  the  LC):  ‘Sexual  harassment  is  the  unwanted  sexual  behaviour 
adopted towards a candidate for a job, an employee or a trainee, in a verbal, non-

17 

 
 
 
 
 
 
 
 
 
 
verbal or physical form, with the intention or the result indicated in the preceding 
concept’.10 

These  concepts  have  a  wider  scope  than  the  concept  of  Directive  2006/54,  since  the 
national provision includes three forms of harassment: harassment in general (e.g. moral 
harassment or mobbing), which is not linked to a discrimination factor; harassment based 
on a discriminatory factor (including sex but also other discriminatory factors indicated in 
the law, such as age, race, disability, place of birth, religious or political convictions, etc.); 
and sexual harassment, which consists of sexual behaviour. In this context, the national 
definition  of  harassment  in  the  field  of  employment  is  therefore  not  only  in  compliance 
with the Directive but even exceeds it.  

In the author’s view, this definition complies with the  EU definition in Article 2(1)(d) of 
Directive 2006/54. 

In  the  field  of  self-employment  and  in  the  field  of  goods  and  services,  the  law  only 
mentions  discriminatory  harassment  and  sexual  harassment  (Article  5(5)  of  Law  No. 
3/2011, of 15 February 2011 and Article 3(c) and (d) of Law No. 14/2008, of 12 March 
2008,  respectively).  In  addition  to  this  difference,  the  legal  concepts  of  harassment  in 
these areas are similar to the concepts of the Labour Code, with small adaptations to the 
situation in question.  

3.7.2  Scope of the prohibition of harassment 

As  indicated  above,  in  Portugal,  harassment  is  explicitly  prohibited  in  the  area  of 
employment (Article 29(1) of the LC, which is also applicable to civil servants), in the area 
of  self-employment,  but  only  in  relation  to  discriminatory  harassment  and  sexual 
harassment (Article 5(5) and (6) of Law No. 3/2011 of 15 February 2011) and in the area 
of access to and supply of goods and services, also in relation to discriminatory harassment 
and sexual harassment (Article 3(c) and (d) and in Article 4(4) of Law No. 14/2008 of 12 
March 2008). 

As  regards  harassment  practices  in  employment  relations,  the  Labour  Code  and  the 
General  Law  for  Civil  Servants  and  other  public  employees  (Lei  Geral  do  Trabalho  em 
Funções Públicas (LGTFP), approved by Law No. 35/2014, of 20 June 2014), have been 
amended by Law No. 73/2017, of 16 August 2017. The changes introduced – which are 
related not only to discriminatory and sexual harassment but to all forms of harassment – 
are  intended  to  reinforce  the  protection  of  harassment  victims  in  employment,  by 
reinforcing the duties of the employer in this area (including imposing or approving a code 
of conduct in this area in companies with more than  seven employees, and the duty to 
start a disciplinary procedure against the author of harassment practices), by increasing 
damage  compensation  rights  and  by  granting  protection  against  victimisation  and 
dismissal to the victims and to witnesses of harassment practices.  

3.7.3  Definition and explicit prohibition of sexual harassment 

As  already  indicated,  sexual  harassment  is  explicitly  prohibited  in  the  Portuguese 
legislation in the area of employment (Articles 29(1) and (3) of the LC, as amended by 
Law No. 73/2017, of 16 August 2017) and Article 24(1) of the Labour Code), in the area 
of goods and services (Article 4(1) and (4) of Law No. 14/2008, of 12 March 2008) and in 
the area of self-employment (Article 5(1), (5) and (6) of Law No. 3/2011, of 15 February 
2011). 

In employment relations, Article 29(3) of the LC, defines sexual harassment as:  

10   This is a rough and unofficial translation made by the author. 

18 

 
 
 
 
 
 
 
 
 
 
                                                   
‘the unwanted sexual behaviour adopted towards a candidate for a job, an employee 
or a trainee, in a verbal, non-verbal or physical form, with the intention or the result 
indicated in the preceding concept’.11 

In the field of self-employment and in the field of goods and services, the notion of sexual 
harassment (Article 5(5) of Law No. 3/2011, of 15 February 2011 and Article 3(c) and (d) 
of Law No. 14/2008, of 12 March 2008, respectively) is similar to the concept of the Labour 
Code, with small adaptations to the situation in question.  

3.7.4  Scope of the prohibition of sexual harassment 

As  indicated  above,  sexual  harassment  is  prohibited  in  the  areas  of  employment,  self-
employment and access to and supply of goods and services and the concepts are similar, 
although slightly adapted to each situation (Article 29(1) and (3) of the LC, Article 5(5) of 
Law No. 3/2011, of 15 February 2011 and Article 3(c) and (d) of Law No. 14/2008, of 12 
March 2008, respectively) 

3.7.5  Understanding of (sexual) harassment as discrimination 

Portuguese legislation does not specify that harassment and sexual harassment as well as 
any less favourable treatment based on the person’s rejection of, or submission to, such 
conduct amounts to discrimination, in the sense of Article 2(2)(a) of Directive 2006/54. 

This question is especially important as regards employment relations, since harassment 
is  dealt  with  in  a  specific  section  of  the  LC,  aside  from  the  provisions  relating  to 
discrimination in general and to sex discrimination in particular. This systematic approach 
to the subject alongside the broad notion of harassment, as indicated above, makes the 
link between the two subjects less clear, even when harassment practices are based on a 
discrimination ground. 

However, the specific section of the Labour Code that deals with the so-called personality 
rights of the parties in employment relations (especially the provision regarding the rights 
of the parties to physical and moral integrity  – Article 15 of the LC) combined with the 
provisions regarding the duties of the employer in relation to the employees (especially 
the duty to treat the employee respectfully and also the duty to grant adequate working 
conditions, not only from a physical point of view but also from a moral point of view – 
Article 127(1)(a) and (c) of the LC) allow for the qualification of such behaviour as a severe 
breach of legal duties, with the adequate consequences in terms of damage compensation.  

3.7.6  Specific difficulties  

There are several  difficulties as regards  the practical implementation of  gender  equality 
and the non-discrimination principle in relation to harassment and sexual harassment. 

The  first  difficulty  comes  from  the  notion  of  harassment.  The  fact  that  this  notion  is 
extremely wide and somewhat ‘subjective’, makes it hard in the Portuguese legal system 
to distinguish real harassment practices from stress situations or a stressful environment 
at the workplace or in the course of employment relations. The unclear line between these 
two situations may result in increased difficulties in the protection of the victims of real 
harassment practices.  

Another difficulty comes from the fact that harassment victims often choose not to disclose 
harassment  practices,  especially  in  the  case  of  vertical  harassment  (i.e.,  when  the 
perpetrator is the employer or a more senior employee), in fear of losing their job.  

11   This is a rough and unofficial translation made by the author. 

19 

 
 
 
 
  
 
 
 
 
 
 
 
                                                   
Finally, a technical difficulty comes from the fact that harassment is dealt with in a specific 
section of the LC, aside from the provisions relating to discrimination in general and aside 
from the provisions relating to sex discrimination in particular, as indicated above.  This 
systematic approach to the subject alongside the broad notion of harassment, makes the 
link between the two subjects less clear, even when harassment practices are based on 
discrimination and must therefore be treated as such, for all purposes.  

3.8  Instruction to discriminate 

3.8.1  Explicit prohibition 

In Portugal, instruction to discrimination is, per se, discriminatory conduct both in the area 
of employment and in the area of goods and services and with regard to self-employment. 

In the area of employment, under Article 23(2) of the LC ‘the order or instruction intended 
to  cause  damage  to  someone  on  the  ground  of  a  discrimination  factor  is,  per  se,  a 
discriminatory practice’.12 

As regards goods and services, Article 4(3) of Law No. 14/2008, of 12 March 2008, also 
qualifies  as  discrimination  any  instruction  or  order  intended  to  directly  or  indirectly 
discriminate against the other party. 

A similar provision is established in Article 5(3) of Law No. 3/2011, of 15 February 2011, 
as regards self-employment.  

3.8.2  Specific difficulties 

There are no specific difficulties in relation to this topic. 

3.9  Other forms of discrimination 

In Portugal, there are no other forms of discrimination prohibited in national law, including 
discrimination by association or assumed discrimination, since national legislation does not 
explicitly address these notions. 

Nevertheless, these forms of discrimination can be invoked under the general prohibition 
of  discrimination,  established  in  Article  25(1)  of  the  LC  and,  aside  from  the  field  of 
employment  relations,  under  the  general  principle  of  equality  and  non-discrimination 
established by Article 13 of the Constitution, which is a directly binding provision. 

3.10 Evaluation of implementation 

In  the  author’s  view,  the  EU  notions  attached  to  gender  equality  and  the  non-
discrimination  principle  were  adequately  transposed  into  national  legislation,  and  the 
scope of the protection against discriminatory practices in domestic legislation is wide and 
in line with EU law. 

The  main  problem  in  Portugal  is  the  practical  implementation  of  the  legislation  and  the 
lack of case law in this field, that makes any assessment impossible to do.  

3.11 Remaining issues 

There are no remaining issues to report on this topic. 

12   This is a rough and unofficial translation made by the author. 

20 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                   
4 

Equal  pay  and  equal  treatment  at  work  (Article  157  of  the  Treaty  on  the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54) 

4.1  General (legal) context 

4.1.1  Surveys on the gender pay gap and the difficulties of realising equal pay 

In Portugal, there are periodical studies and surveys on equal pay, conducted by the CITE 
– ‘Comissão para a Igualdade no Trabalho e no Emprego (‘Gender Equality Agency in the 
Field of Employment’). In this respect, the more recent general survey published by the 
CITE and relating to 201713 indicates that the gender pay gap is still high (17.5% in favour 
of men, reported to 2017 and according to Eurostat data, as the national numbers are a 
bit lower), and that the pay gap is more severe in higher positions (26.2% in favour of 
men) despite the fact that women have better qualifications than men.14  

This information allows for the conclusion that the practical implementation of the ruling 
in this field is still weak. 

To a certain extent, the persistence of a high gender pay gap justifies the new piece of 
legislation, approved in 2018 (Law No. 60/2018, of 21 August 2018), that directly focuses 
on the pay gap and on wage transparency, which we describe below. Under Article 3 of 
this law, every  year, the Ministry of  Employment and Social Affairs will publish detailed 
statistical data on the salary gap between men and women, at general and sectorial levels; 
and statistical data by company, profession and qualification level, based on the annual 
balance  sheet  provided  by  the  companies.  In  this  sense,  updated  information  will  be 
produced yearly on the subject of equal pay. 

4.1.2  Surveys on the difficulties of achieving equal treatment at work 

The periodical studies and surveys on equal pay, conducted by the CITE – ‘Comissão para 
a  Igualdade  no  Trabalho  e  no  Emprego  (‘Gender  Equality  Agency  in  the  Field  of 
Employment’),  mentioned  just  above,  also  deal  with  gender  equality  in  access  to 
employment and equal treatment at work. In this respect, the more recent general survey 
published by the CITE, relating to 2017, has the following information: 

- 

- 

- 

the number of Portuguese  women with a professional activity almost  matches the 
number of men (48.9 % of women compared to 51.1 % of men);15 
Portuguese women reach higher levels of education and qualification than men but 
there are fewer women than men in high-ranking and managerial positions (34.3 % 
compared to 65.7 % in favour of men);16 
most Portuguese women work full-time (88.6%).17  

4.1.3  Other issues 

Not applicable. 

13   The more recent general report of the CITE (‘Relatório sobre o Progresso da Igualdade entre Homens e 

Mulheres 2017’ – ‘Report on the Progress of Equality between Men and Women 2017’) relates to 2017 and 
is available at http://cite.gov.pt/asstscite/downloads/2017_Relatorio_Lei_10_2001.pdf. This Report will be 
mentioned hereafter as CITE 2017 Report. 

14   CITE 2017 Report, pages 33, 35 and 26. 
15   CITE 2017 Report, page 20. 
16   CITE 2017 Report, pages 26 to 29.  
17   CITE 2017 Report, page 68. 

21 

 
 
 
 
 
 
 
 
 
 
 
 
                                                   
4.1.4  Political and societal debate and pending legislative proposals 

Equal pay is a subject that always arises in political and social debate. This was also the 
case  in  Portugal,  in  2018,  in  the  context  of  the  discussion  and  approval  of  Law  No. 
60/2018, of 21 August 2018), which directly focuses on the gender pay gap and on wage 
transparency. 

At another level, there is a social debate on this subject in the context of the campaigns 
launched by the CITE as well as the Government in favour of equal pay and directed at 
employers, employers associations and trade unions. For instance, for some years now, 
the CITE launches a campaign on the precise day of the year where, according to statistical 
data, women meet the pay rate of men (until now, this day has been set somewhere in 
November, thus indicating that the pay gap corresponds to more than a month salary in 
favour of men), which is intended to raise awareness of the annual evolution of the pay 
gap. Other more substantive actions directed at the stakeholders involved also take place, 
as well as the publication of studies and other data in this area.  

These  campaigns  often  involve  the  media,  and  the  activity  of  the  CITE  in  this  area  is 
regularly published on the CITE’s website (www.cite.gov.pt). 

4.2  Equal pay 

4.2.1  Implementation in national law 

In  Portugal,  a  general  right  to  equal  pay  for  equal  work  or  work  of  the  same  value  is 
established in the Constitution (Article 59(1)(a)) as a fundamental right of workers and 
employees.  

The same general principle is established in the Labour Code (Article 270), and the Code 
applies this principle both to non-discrimination in general (Article 24(2)(c)) and to gender 
equality in particular (Article 31). The LC provisions on equal pay are applicable both in 
the private sector and in the public sector. 

Recently, a new piece of legislation was approved in this field, complementing the Labour 
Code: Law No. 60/2018, of 21 August 2018, on equal pay between men and women and 
pay transparency.  

4.2.2  Definition in national law 

In the LC, Article 24(1)(b) covers the principle of equal pay in relation to all grounds of 
discrimination and Article 31(1) and (2) covers this principle in relation to gender equality. 

Article 24(2)(c) and Article 31(2) establish the concept of remuneration in a rather unclear 
way, since apparently this concept does not rely on the EU-law broad concept of equal pay 
for the purpose of gender equality but on the national concept of remuneration, the content 
of which is narrower (in the sense that it does not cover all financial advantages granted 
to the employee under  an employment contract). Nevertheless, for the purposes  of the 
equal  pay  principle,  the  LC  explicitly  states  that  this  principle  applies  not  only  to 
remuneration  but  also  to  other  financial  benefits  granted  to  the  employee  under  an 
employment contract (Article 24(2)(c)).  

The new legislation of pay transparency (Law No. 60/2018, of 21 August 2018), has made 
the notion of remuneration clearer and therefore in line with the Article 157(2) TFEU. This 
notion of remuneration (Article 1(1)(b)), that is valid specifically for the purposes of equal 
pay, is broader than the notion of the LC, as it explicitly includes other financial advantages 
aside from the strict notion of salary, as in the case of the payment of travel expenses and 
other expenses relating to the performance of the work, bonuses, or premiums linked to 

22 

 
 
 
 
 
 
 
 
 
 
 
 
productivity  or  seniority  or  good  attendance.  This  broader  notion  of  remuneration  is, 
however, applicable only to sex and not to other discrimination factors.   

Therefore, national legislation meets the definition of pay in Article 157(2) TFEU, although 
in an indirect way, as explained above. 

4.2.3  Explicit implementation of Article 4 of Recast Directive 2006/54 

Article 31(1) combined with Article 25 of the LC, transposes Article 4 Paragraph 1 of Recast 
Directive 2006/54, prohibiting direct and indirect discrimination on grounds of sex, with 
regard to all aspects and conditions of remuneration. 

4.2.4  Related case law 

To the author’s knowledge, there is no leading national case law nor opinions of equality 
bodies  relating  to  pay  discrimination  on  the  ground  of  sex.  As  already  indicated,  in 
Portugal, there is almost no case law in the area of gender equality, with the exception of 
maternity issues and issues related to gender equality in collective agreements. 

4.2.5  Permissibility of pay differences 

Under  the  Portuguese  legal  system,  differences  in  pay  are  only  allowed  when  based  on 
objective criteria, common to men and women, which are productivity, seniority, and the 
lack  of  periods  of  absence.  However,  as  regards  the  criteria  of  the  lack  of  periods  of 
absence,  the  law  explicitly  indicates  that  the  exercise  of  maternity  and  paternity  rights 
(‘parenthood rights’) cannot justify different remuneration (Article 31(3) and (4) of the LC 
and Article 2(1)(d) of Law No. 60/2018, of 21 August 2018). 

Nevertheless, despite the formal compliance with EU law, indirect discriminatory practices 
cannot be completely ruled out when considering the criteria relating to the lack of periods 
of absence of the worker, because other situations of time off are included, including time 
off for reasons relating to care for other relatives, which is more common among women 
than among men. Also, indirect discrimination can arise here, even in situations relating 
to a worker’s periods of absence to take care of children, apart from maternity, paternity 
and parental leave, because the notion of ‘parenthood rights’ is not clear in the law and 
therefore tends to be interpreted in a strict sense, e.g. only  in relation to specific rights 
attached to maternity, paternity and parental leave.  

4.2.6  Requirement for comparators 

Under  Article  25(4)  of  the  LC,  when  invoking  pay  discrimination,  the  employee  must 
indicate the worker(s) in relation to whom he/she considers to be discriminated against. 
In this sense, a comparator is required. 

The  law  makes  no  mention  of  the  possibility  of  a  hypothetical  comparator,  so  in  the 
author’s  view  it  would  be  possible  to  indicate  a  hypothetical  comparator,  provided  the 
employer is the same. In this sense, the claimant could invoke that a previous employee 
in exactly the same job earned much more, but he/she could not invoke that he/she is 
paid less than another worker who performs a similar job for another employer.  

However, since there is no case law in this area, it is not possible to assess the practical 
difficulties of the invocation of a hypothetical comparator. 

23 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
4.2.7  Existence of parameters for establishing the equal value of the work performed 

The legal definition of equal work establishes that there is equal work when the work is of 
a ‘similar nature, quantity and quality’ (Article 59(1)(a) of the PC and Article 23 (1)(c) of 
the LC).  

The  legal  definition  of  work  of  equal  value  considers  that  the  work  is  to  be  considered 
equivalent ‘taking into consideration the qualification or the experience of the worker, the 
level of responsibility involved, the physical and mental effort required and the working 
conditions in practice’18 (Article 23 No. 1 (d) of the LC).  

In the author’s view these definitions and criteria are in line with the concepts of EU law. 

4.2.8  Other relevant rules or policies 

There  are  no  other  relevant  rules  or  policies  that  provide  such  parameters,  in  the 
Portuguese legislation. 

4.2.9  Wage transparency 

Several  provisions  of  the  LC  on  equal  pay  point  towards  wage  transparency,  mainly  by 
stipulating that remuneration is to be determined by criteria common to men and women 
(Article  31(2))  and  by  stipulating  that  job  description  and  job  evaluation  must  rely  on 
objective  criteria,  common  to  men  and  women  and  that  such  criteria  must  exclude  all 
forms of sex discrimination (Article 31(5)). 

Another  provision  intended  to  promote  transparency  in  relation  to  gender  equality  in 
general  (including  wage  transparency)  is  Article  32  of  the  LC,  which  imposes  upon  the 
employer the duty to keep sex-segregated records of recruitment forms and procedures, 
for a minimum period of five years. These records must also include information that allows 
for the research of wage discrimination. 

However, in this area, the major legal development in recent years was the approval of 
Law  No.  60/2018,  of  21  August  2018.  The  main  goal  of  this  piece  of  legislation  is  to 
establish a set of measures directly intended to contribute to a better implementation of 
the principle of equal pay, thus complementing the provisions of the LC in this area. These 
measures are the following: 

- 

- 

- 

- 

Every  year,  the  Ministry  of  Employment  and  Social  Affairs  will  publish  detailed 
statistical data on the salary gap between men and women, at general and sectorial 
levels;  and  statistical  data  by  company,  profession  and  qualification  level,  based 
upon the annual balance sheet provided by the companies (Article 3); 
The  employers  must  implement  a  transparent  wage  policy  in  the  companies 
(Article 4); 
Following  the  publication  of  the  statistical  data  indicated  above,  if  the  Gender 
Equality Agency in the Field of Employment (CITE) detects wage inequalities inside 
a  company,  it  notifies  the  employer  to  present  an  ‘evaluation  plan  of  the  wage 
differences in the company’ that is intended either to justify those differences and to 
eliminate  those  with  no  objective  justification,  and  that  will  be  put  in  place  for  a 
period of 12 months (Article 5);  
The workers and union representatives also have the right to ask the CITE for advice 
on  alleged  gender  pay  discriminatory  practices  inside  the  company;  if  the  CITE 
concludes that a wage discrimination on the ground of sex is in place, the employer 
is compelled to eradicate it and he may be subjected to a fine (Article 6); 

18   This is a rough and unofficial translation made by the author. 

24 

 
 
 
 
 
 
 
 
 
 
                                                   
- 

The dismissal or the application of disciplinary measures against the worker  up to 
one year after he/she has asked the CITE for the advice indicated above is presumed 
unlawful (Article 7). 

The measures now approved are examples of possible good practices in this field, since 
they go far beyond the level of protection granted by  EU law. However, in the author’s 
opinion,  some  of  these  measures  look  rather  complex  and  therefore  may  be  difficult  to 
implement in practice (mainly as regards the assessments tasks of the CITE). At another 
level,  this  Law  repeats  some  of  the  definitions  and  some  of  the  rules  that  are  already 
written in the LC, apparently with the aim of reinforcing the protection already granted by 
the LC in this field. However, since the content of both definitions and rules is not always 
equivalent, some technical problems may arise in the application of this legislation.     

4.2.10 Implementation of the transparency measures set out by European Commission’s 
Recommendation  of  7  March  2014  on  strengthening  the  principle  of  equal  pay 
between men and women 

Some of the points of the European Commission’s Recommendation of 7 March 2014 are 
already integrated in Portuguese legislation.  

As  regards  the  information  rights  regarding  wages,  in  view  of  point  3  of  the 
Recommendation, information on wages in the companies, separated by sex, is already 
available to employees under Article 32(1)(g) of the LC. 

As  regards  this  topic  in  collective  bargaining  (thus  in  view  of  point  6  of  the 
Recommendation) several provisions of the LC are worth mentioning: 

- 

- 

- 

Article  492(2)(c)  of  the  LC  indicates  the  measures  intended  to  promote  gender 
equality  (including  equal  pay)  as  one  of  the  mandatory  topics  of  collective 
agreements. However, as already indicated, this rule is only a recommendation, with 
no binding effect. 
Article  479  of  the  LC,  regarding  the  content  of  collective  agreements  and 
discrimination,  establishes  the  duty  of  the  CITE  –  ‘Comissão  para  a  Igualdade  no 
Trabalho  e no  Emprego’ (‘Gender  Equality Agency in the Field of  Employment’) to 
inspect all collective agreements just after their publication in order to check if they 
include discriminatory clauses. If this is the case, the Agency will directly confront 
the employer inviting him to change the clause and if the employer fails to do so, 
the Agency presents the case to the public attorney, who can take it to court in order 
to  have  these  clauses  declared  null  and  void.  This  rule,  introduced  by  the  Labour 
Code of 2009 is in line with point 5 of the Recommendation. 
Finally,  Article  26  of  the  LC  establishes  that  whenever  a  collective  agreement  or 
internal provision of company regulations restricts a certain type of remuneration to 
men or to women, these stipulations are automatically applicable to employees  of 
both  sexes,  provided  they  perform  equal  work  or  work  of  the  same  value.  This 
provision of national legislation on equal pay can be very effective to promote the 
practical implementation of equal pay and goes beyond the requirements of EU rules 
regarding the sanctions applicable to collective agreements that do not comply with 
the equal pay principle. 

Apart  from  the  LC,  the  measures  established  in  Law  No.  60/2018,  of  21  August  2018, 
mentioned  just  above  (especially  the  ‘evaluation  plan  of  the  wage  differences  in  the 
company’  that  the  employer  must  put  in  place  and  which  is  intended  to  justify  pay 
differences and to eliminate those with no objective justification, as indicated in Article 5 
of this Law) go in this same direction. 

25 

 
 
 
 
 
 
 
 
 
4.2.11 Other measures, tools or procedures 

The  measures  already  indicated  on  this  issue  are  a  good  example  of  the  several 
mechanisms that can be put forward to implement equal pay in practice. 

4.3  Access to work, working conditions and dismissal 

4.3.1  Definition of the personal scope (Article 14 of Recast Directive 2006/54) 

In Portugal, the scope of the LC, which includes the provisions implementing the gender 
equality  principle  and  the  non-discrimination  principle  in  the  field  of  employment  and 
industrial relations, is defined not on the basis of a notion of ‘worker’, but on the basis of 
the notion of employment contract. 

In  fact,  national  legislation  does  not  a  have  a  concept  of  worker,  as  such,  but  it  does 
include a concept of employment contract that is established both in the Civil Code (Article 
1152) and in the LC (Article 11). Under these  concepts,  an employment contract is the 
contract concluded between an employer and a worker by which the worker performs paid 
mental  or  manual  activity  within  the  employer’s  organisation  and  in  a  subordinate  way 
(e.g.  under  the  employer’s  supervision  and  subjected  to  the  employer’s  disciplinary 
power).  In  the  public  sector,  there  is  a  similar  concept  of  employment  contract  with  a 
public employer (Article 6(2) of ‘Lei Geral do Trabalho em Funções Públicas’ (‘General Law 
for Public Employment’), approved by Law No. 35/2014, of 20 June 2014). 

The concept of worker for the purposes of employment legislation, both in the private and 
in the public sector, comes from these notions of employment contract and the main aspect 
of this concept is the element of ‘subordination’.  

All subordinate workers in the private sector with an employment contract are covered by 
the LC and therefore by gender equality provisions, which are also applicable to workers 
in the public sector. Therefore, atypical subordinate workers (such as workers with fixed-
term contracts or temporary contracts, part-time workers, or teleworkers) are all covered 
by these rules, since they all have specific employment contracts. 

‘Quasi-subordinate’ workers are a particular category of workers traditionally recognised 
in  Portuguese  legislation  under  the  expression  ‘trabalhadores  equiparados’  (‘equivalent 
workers’)  or  ‘trabalhadores  com  dependência  económica’  (‘workers  in  economic 
dependence’). This category is specifically dealt with in Law No. 101/2009, of 8 September 
2009,  and  is  recognised  when,  in  the  absence  of  an  employment  contract  (for  lack  of 
subordination),  the  worker  is  economically  dependent  on  the  creditor  of  the  work  in  a 
substantial  way  (mainly  because  he  works  only  for  him)  –  see  Article  1  of  Law  No. 
101/2009. If this is the case, the law extends some labour protection rules to this category 
of  workers,  despite  their  formal  qualification  as  independent  workers.19  In  the  LC,  this 
extension  is  contemplated  in  Article  10,  and  includes  the  LC  provisions  in  the  field  of 
gender equality. Therefore, in the private sector these workers are covered.  

By  contrast,  there  is  no  similar  provision  in  the  public  sector,  so  in  this  area  quasi-
subordinate workers are not covered by gender equality rules.  

4.3.2  Definition of the material scope (Article 14(1) of Recast Directive 2006/54) 

Article 24 of the LC defines the scope of the non-discrimination principle (including on the 
ground  of  sex)  in  relation  to  access  to  employment,  vocational  training,  and  working 
conditions, including dismissal, in line with Article 14 of Directive 2006/54. As regards sex 
discrimination, this provision is complemented by Article 30 of the LC. 

19   This is even though, from an economic point of view, these workers seem to constitute a separate category 

between workers and independent persons.  

26 

 
 
 
 
 
 
 
 
 
 
 
                                                   
The scope of Articles 24 and 30 of the LC is in line with the scope of Article 14(1) of Recast 
Directive 2006/54, except for the reference to self-employment and occupation, since self-
employment is outside the scope of the LC.  

4.3.3  Implementation of the exception in occupational activities (Article 14(2) of Recast 

Directive 2006/54) 

The  exception  to  non-discrimination  and  gender  equality  principles  in  access  to 
employment based on occupational activities is possible under the Portuguese legislation, 
provided  the  conditions  of  Article  25(2)  of  the  LC  are  met,  e.g.  provided  the  different 
treatment is based on objective and essential reasons which must be linked to that specific 
occupation, due to its nature or to the context in which the work is to be performed, and 
under  the  condition  that  the  objective  is  legitimate  and  the  different  treatment  is 
proportional.  

These  conditions  are  established  by  the  Labour  Code  in  relation  to  all  discrimination 
grounds, so it includes gender.  

The author is not aware of specific assessments led by the Portuguese State in relation to 
these occupational activities. 

4.3.4  Protection  against  the  non-hiring,  non-renewal  of  a  fixed-term  contract,  non-
continuation  of  a  contract  and  dismissal  of  women  connected  to  their  state  of 
pregnancy and/or maternity 

The Labour Code protects women in relation to pregnancy, maternity, paternity, adoption 
and other situations related to the reconciliation of professional and family life. 

This  principle  is  developed  in  specific  areas,  like  the  non-renewal  of  fixed-term 
employment  contracts  and  the  dismissal  of  women  during  pregnancy  and/or  while  on 
maternity leave.  

The refusal to renew a fixed-term contract with such workers must be communicated to 
the CITE (‘Public Agency for Equality in Employment’) (Article 144(3) of the LC).  

Dismissal  during  pregnancy  and  maternity  leave,  as  well  as  during  parental  leave,  is 
unlawful and therefore forbidden (Article 53 of the PC, and Articles 338 and 63(2) of the 
LC).  

Also, if the worker is dismissed on these grounds, the dismissal is null and void and he/she 
has the right to be reinstated, but if he/she decides not go back, he/she has the right to 
accrued damage compensation (calculated at double the basis of 15 to 45 days per year 
of the employment contract (Article 63(8) and Article 392(1) of the LC). 

In addition to this general prohibition, if any form of dismissal occurs while the worker is 
pregnant  or  during  any  type  of  leave  (e.g.  collective  dismissal  or  other  objectively 
motivated dismissal), the dismissal is still presumed unlawful and has to follow a different 
procedure involving the CITE (‘Gender Equality Agency in the Field of Employment’), which 
has to approve the dismissal in advance (Article 63 of the LC). If, in the end, an employee 
is made redundant during her maternity leave, the payment for maternity leave as such 
will cease, since this payment is granted by the public social security system to workers 
with  an  employment  contract,  but  it  will  be  replaced  by  unemployment  allowance,  also 
granted by the public social security system. 

27 

 
 
 
 
 
 
 
 
 
 
 
 
 
4.3.5  Implementation  of  the  exception  on  the  protection  for  women  in  relation  to 

pregnancy and maternity (Article 28(1) of Recast Directive 2006/54) 

Article 24(3)(b) of the LC explicitly indicates that the non-discrimination principle in the 
access to employment, during an employment contract or in vocational training does not 
prevent  the  adoption  of  specific  measures  aiming  to  protect  pregnancy,  maternity, 
paternity, adoption and other  situations related to the reconciliation of professional and 
family life. 

4.3.6  Particular difficulties 

There are no particular difficulties in this area, in the Portuguese legal system. 

4.3.7  Positive action measures (Article 3 of Recast Directive 2006/54)  

The Portuguese legislation allows for positive action measures in the course of employment 
relations, under the general provision of Article 27 of the LC. 

In relation to discrimination on the grounds of maternity and parenthood, Article 30(3) of 
the LC states that, when professional training regards economic activities dominated by 
workers of one sex, workers of the under-represented sex have priority in the access to 
professional training; the same priority is generally granted to workers with low academic 
formation or no specific skills, as well as to workers responsible for single-parent families, 
and  to  those  who  have  been  on  leave  for  reasons  related  to  maternity,  paternity  or 
adoption. This provision may clearly favour women, since they are more likely to be in the 
situations described by the rule. 

Also,  outside  the  LC  but  with  a  direct  impact  in  employment  relations,  it  is  worth 
mentioning  the  measures  outlined  in  Article  7  of  Law  No.  62/2017,  of  1  August  2017, 
which  imposes  upon  the  companies  the  duty  to  have  elaborate  annual  equality  plans, 
intended to achieve equal opportunities and equal treatment of women and men and to 
promote the reconciliation of professional and family life within the company, and with the 
specific intention of promoting gender-balanced access to subordinate leadership positions 
in the company. Given the fact that women are less represented in those positions, this 
provision is a positive action in the sense of the notion of positive action included in Article 
27 of the LC. This is a very important provision because until now, these plans were not 
mandatory.   

4.4  Evaluation of implementation 

In the authors’ opinion, the Portuguese experience shows that the granting of the rights 
related  to  equal  pay  and  to  equal  treatment  in  employment  relations  by  the  law  is  not 
enough to eliminate the gender pay gap and the different treatment of men and women 
in the course of an employment contract. 

This  is  so  because  the  source  of  the  problem  is  also  linked  to  the  traditional  stigma 
attached  to  the  social  roles  of  men  and  women  in  public  and  private  life  and  to  the 
unbalanced share of the family and care responsibilities between workers of the two sexes 
– inequality in the reconciliation of professional and family life leads to shorter working 
time (women who have to take care of their children tend to avoid overtime work or night 
work, which bring more pay); undervalued work; shorter careers; increased difficulties in 
promotion and less training for women. All these factors involve or lead to lower pay and 
to fewer professional opportunities.  

This is the reason why pay gap and equal treatment issues must be tackled both at the 
legal level and at the practical level and good practices can make a difference here.   

28 

 
 
 
 
 
 
 
 
 
 
 
 
4.5  Remaining issues 

Not applicable.  

29 

 
 
 
 
5 

Pregnancy,  maternity,  and  leave  related  to  work-life  balance  for  workers 
(Directive 92/85, relevant provisions of Directives 2006/54 and 2010/18)20 

5.1  General (legal) context 

5.1.1  Surveys and reports on the practical difficulties linked to work-life balance 

The periodical studies and surveys on equal pay, conducted by the CITE – ‘Comissão para 
a  Igualdade  no  Trabalho  e  no  Emprego’  (‘Gender  Equality  Agency  in  the  Field  of 
Employment’), already mentioned, also deal with maternity, paternity and issues related 
to the reconciliation of professional and family life. In this respect, the more recent general 
survey published by the CITE  and  relating to 2017 indicates a growing use  of paternity 
leave  and  parental  leave  by  the  fathers  in  more  recent  years  and  the  extensive  use  of 
childcare  facilities  for  children  prior  to  school  age  by  Portuguese  families.21  On  the 
contrary, part-time work is not used in Portugal in the context of work-family balance.22 

Despite the encouraging data relating to the use of family-related leave by the fathers, it 
is a known fact that women are still the main ones responsible for caring roles, and that 
working  fathers  do  not  take  full  advantage  of  the  several  measures  established  by  the 
Labour Code and intended to guarantee the exercise of ‘parenthood’ rights and to promote 
the reconciliation of professional and family life on a regular basis (for instance, time-off 
from work to attend to family needs). They tend to limit the taking of the family-related 
leave (like paternity leave, maternity leave in the period that can be divided between both 
parents, and parental leave) only during the periods in which the leave is paid. 

5.1.2  Other issues 

Not applicable.  

5.1.3  Overview of national acts on work-life balance issues 

In Portugal, work-life balance issues are dealt with in the Portuguese Constitution (PC), of 
1976 and in the Labour Code of 2009, and also by certain acts on more specific issues. 

Under the Portuguese Constitution, the right to an adequate reconciliation between work 
and family life is granted as a fundamental right of all workers (Article 59(1)(b)) and the 
State must implement policies and legal measures aiming towards that goal (Article 67(h) 
of the PC).  

Prior to the approval of the first Labour Code (2003), these issues were dealt with by the 
Maternity and Paternity Act of 1984, but the Labour Code repealed that Act and integrated 
the  provisions  relating  to  maternity,  paternity,  and  reconciliation  issues.  Today,  these 
issues are dealt with by the Labour Code of 2009, which is now in force (Articles 33 to 65). 
Complementing  the  Labour  Code  in  this  area,  two  pieces  of  legislation  are  also  worth 
mentioning: 

- 

Decree-Law No. 91/2009, of 9 April 2009, on social protection attached to pregnancy 
risks and also to maternity, paternity and parental leave; 

20   See Masselot, A. (2018) Family leave: enforcement of the protection against dismissal and unfavourable 
treatment, European network of legal experts in gender equality and non-discrimination, available at 
https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-
dismissal-and-unfavourable-treatment-pdf-962-kb and McColgan, A. (2015) Measures to address the 
challenges of work-life balance in the EU Member States, Iceland, Liechtenstein and Norway European 
network of legal experts in gender equality and non-discrimination, available at 
https://www.equalitylaw.eu/downloads/3631-reconciliation. 

21   CITE Report 2017, pages 63 to 66.  
22   CITE Report 2017, page 68.  

30 

 
 
 
 
 
 
 
 
 
 
 
                                                   
- 

Law No. 102/2009, of 10 September 2009, on safety and health at the workplace, 
that has transposed Directive 92/85 as regards the special protection of the health 
and  safety  of  working  women,  while  pregnant,  om  maternity  leave  and  while 
breastfeeding.  

The LC and the complementary legislation to the LC have transposed all relevant Directives 
regarding the maternity and parental leave directives. These provisions are applicable to 
employees  of  the  private  sector,  but  also  to  employees  of  the  public  sector  (Law  No. 
35/2014, of 20 June 2014, called ‘Public Servants General Law’ – ‘Lei Geral do Trabalho 
em Funções Públicas’, Article 4(1)(c) and (d)).  

5.1.4  Political and societal debate and pending legislative proposals 

To  the  author’s  knowledge,  there  are  no  pending  legislative  proposals  in  the  area  of 
maternity, paternity and work-life balance in Portugal. 

5.2  Pregnancy and maternity protection 

5.2.1  Definition in national law 

The concepts of ‘pregnant worker’, ‘worker who has recently given birth’ and ‘worker who 
is breastfeeding’ are established in national law, in Article 36(1)(a)(b) and (c) of the LC, 
as follows: 

- 

- 

- 

A  pregnant  worker  is  a  worker  carrying  a  child  who  informs  the  employer  of  her 
situation, in writing and by presenting a medical certificate (a); 
A worker who has recently given birth is a worker in labour or during the period of 
120 days after giving birth who informs the employer of her situation, in writing and 
by presenting a medical certificate or a birth certificate (b); 
A worker who is breastfeeding is a worker who breastfeeds her child and informs the 
employer of her situation, in writing and by presenting a medical certificate (c). 

These  concepts  comply  with  the  concepts  of  Directive  92/85,  in  the  sense  that  these 
workers must inform the employer of their situation as a condition to have access to the 
relevant  protection  rules.  However,  these  concepts  go  a  little  beyond  those  of  the 
Directive, since it is established that the protection rules regarding maternity and paternity 
are applicable not only if the worker has formally informed the employer of her condition 
but  also,  regardless  of  that  formal  communication,  whenever  the  employer  has  direct 
knowledge of the worker’s condition (Article 36(2) of the LC). 

Therefore, these concepts are wider in domestic law than in European law. 

5.2.2  Obligation to inform employer 

As indicated above, the workers must inform the employer of their situation as a condition 
to have access to the relevant protection rules. However, these concepts go a little beyond 
the  concepts  of  the  Directive,  since  it  is  established  that  the  protection  rules  regarding 
maternity and paternity are applicable not only if the worker has formally informed the 
employer  of her  condition but also,  regardless  of that formal communication, whenever 
the employer has direct knowledge of the worker’s condition (Article 36(2) of the LC). 

5.2.3  Case law on the definition of a pregnant worker, a worker who has recently given 

birth and/or a worker who is breastfeeding 

To the author’s knowledge, there is no case law on the definition of a pregnant worker, a 
worker who has recently given birth and a worker who is breastfeeding. 

31 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.2.4  Implementation of protective measures (Articles 4-6 of Directive 92/85) 

Under  the  Portuguese  legislation,  pregnant  women  are  protected  as  regards  working 
conditions relating to the activity performed, working-time arrangements, including night 
work, and pregnancy-related illnesses, including antenatal examinations.  

In relation to working conditions, all types of work that may be dangerous either for the 
woman or for the baby are forbidden or restricted, and the woman is entitled to change to 
non-dangerous work, or, if such a change is not possible, to go on leave, paid by social 
security (Article 62 of the LC). The list of activities forbidden or restricted during pregnancy 
is part of the legislation concerning health and safety at the workplace: Law No. 102/2009 
of 10 September 2009, Articles 51 et seq. The legislation regarding social security benefits 
relating  to  all  leave  regarding  pregnancy,  maternity  and  paternity  is  Decree-Law  No. 
91/2009 of 9 April 2009.  

In relation to pregnancy-related illnesses, women have the right to go on paid leave in the 
event of pregnancy risks affecting their ability to work, as well as in the event of abortion, 
and to normal sick leave in the event of other illnesses during pregnancy (LC, Articles 37 
and 38). They also have the right to attend antenatal examinations, with no loss of salary 
(Articles 46 and 65(2) of the LC). 

There are no problems in the implementation of EU law at national level in this area. 

5.2.5  Case law on issues addressed in Article 4 and 5 of Directive 92/85 

To the author’s knowledge, there is no case law in this area. 

5.2.6  Prohibition of night work 

In relation to  working-time arrangements, pregnant women are entitled to  refuse night 
work, overtime work and flexible working-time arrangements and as regards night work, 
they  are  entitled  to  be  transferred  to  a  day-time  position,  or,  if  such  a  position  is  not 
available, to go on leave paid by social security (LC, Articles 60, 59 and 58, respectively).  

5.2.7  Case law on the prohibition of night work 

To the author’s knowledge, there is no case law in this area. 

5.2.8  Prohibition of dismissal  

Dismissal  during  pregnancy  and  maternity  leave,  as  well  as  during  parental  leave,  is 
unlawful  and  therefore  forbidden,  under  Article  53  of  the  Portuguese  Constitution,  and 
Articles 338 and 63(2) of the LC).  

Also, if the worker is dismissed on these grounds, the dismissal is null and void and he/she 
has the right to be reinstated, but if he/she decides not go back, he/she has the right to 
accrued damage compensation (calculated at double the basis of 15 to 45 days per year 
of the employment contract (Article 63(8) and Article 392(1) of the LC). 

In addition to this general prohibition, if any form of dismissal occurs while the worker is 
pregnant  or  during  any  type  of  leave  (e.g.  collective  dismissal  or  other  objectively 
motivated dismissal), the dismissal is still presumed unlawful and has to follow a different 
procedure involving the CITE (‘Gender Equality Agency in the Field of Employment’), which 
has to approve the dismissal in advance (Article 63 of the LC).  

32 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.2.9  Redundancy and payment during maternity leave 

If an employee is made redundant during her maternity leave, the payment for maternity 
leave as such will cease, since this payment is granted by the public social security system 
to  workers  with  an  employment  contract.  But  this  payment  will  be  replaced  by 
unemployment allowance, also granted by the public social security system. 

5.2.10 Employer’s obligation to substantiate a dismissal 

Under  the  Portuguese  Constitution  and  legislation,  all  forms  of  dismissal  (including 
disciplinary dismissal, collective dismissal or other objectively motivated dismissal) must 
have substantiated grounds, which need to be communicated to the worker in writing, and 
every  form  of  dismissal  must  respect  a  specific  and  quite  strict  procedure.  Either  the 
absence of the adequate motive or of the adequate procedure, established by law, makes 
the dismissal null and void and grants the employee the right to reinstatement (Articles 
351 et seq. and 381 et seq. of the LC).  

This general rule also applies if the dismissed worker is pregnant, on maternity leave or 
on parental leave.  

5.2.11 Case law on the protection against dismissal 

Case law relating to the dismissal of pregnant women, or women or men using maternity, 
paternity or parental leave are known, but not very frequent, at least at the level of the 
Courts of Appeal, since in Portugal, only those Courts publish their judgments.  

For instance, in 2018, no case law in this area was published and in 2017, there was a 
judgment of the Court of Appeal of Lisbon, in a case relating to the dismissal of a worker 
during parental leave (Acórdão do Tribunal da Relação de Lisboa de 13/09/2017 – Proc. 
No. 26175/15.6T8LSB.L1-4), which we will describe below in this Report, in the context of 
parental leave.   

5.3  Maternity leave 

5.3.1  Length 

Maternity leave (which is called ‘initial parental leave’ by the LC)23 is granted to women 
and to men and is in fact divided into several types of leave:  

- 

- 

- 

‘initial parental leave just for the mother’ with a minimum duration of 6 weeks after 
giving birth (Article 41 of the LC);  
‘initial parental leave’ for the remaining time until 120 days or 150 days, according 
to the choice of the parents, which can be divided between both parents (Article 40 
of the LC);  
and ‘initial parental leave of one of the parents in replacement of the other parent’ 
(e.g. leave for the father to replace the mother who died during the leave) (Article 
42 of the LC), which lasts for the remaining part of maternity leave.  

It is worth mentioning two specific provisions which have been established by the law in 
order to promote the taking of leave by the father and the sharing of leave between both 
parents: if after the initial period of maternity leave (e.g. ‘initial parental leave’) the other 
party  of  the  couple  takes  the  leave  for  30  days  or  for  2  periods  of  15  days,  the  total 
duration of maternity leave (120 or 150 days) is extended by 30 more days (Article 40(3) 

23   This specific type of leave corresponds to ‘maternity leave’, as regulated by EU law. The Portuguese term 
for this type of leave (‘initial parental leave’) intends to draw attention to the fact that both parents can 
enjoy it, alternatively, but the phrase can be misinterpreted. 

33 

 
 
 
 
 
 
 
 
 
 
 
 
                                                   
of the LC); also, if the parents choose to take the longer leave of 150 days, the last 30 
days can be taken simultaneously by both parents (Article 40(2) of the LC, introduced by 
Law No. 120/2015, of 1 September 2015). 

5.3.2  Obligatory maternity leave 

The ‘initial parental leave just for the mother’ is obligatory and has a duration of six weeks 
after giving birth (Article 41 of the LC). 
In contrast, there are no obligatory periods of maternity leave before giving birth, but in 
addition to maternity leave, there may be a ‘special leave in case of medical risk during 
pregnancy’,  which  is  possible  under  Article  37  of  the  LC  and  the  length  of  which  is 
determined by medical examination.  

5.3.3  Legal protection of employment rights (Articles 5, 6 and 7 of Directive 92/85)  

In relation to employment rights, Article 65 of the LC states that all employment rights 
(except  pay  rights)  are  kept  during  maternity  and  parental  leave,  as  well  as  in  other 
situations related to pregnancy and maternity, such as the need to change from night work 
to a day-time job, or the leave for safety reasons or for medical reasons due to pregnancy, 
and also abortion leave, or time off to attend antenatal examinations. 

5.3.4  Legal protection of rights ensuing from the employment contract  

In Portuguese legislation, all leave related to maternity (maternity leave, adoption leave, 
as well as pregnancy-related leave, such as abortion leave, leave for pregnancy-related 
sickness  and  leave  related  to  night  work  and  to  dangerous  work,  when  there  is  no 
alternative job available) is paid by the public social security system. 

The  exception  is  time  off  to  attend  antenatal  examinations  and  for  the  purposes  of 
breastfeeding, where the period of absence is paid by the employer. 

5.3.5  Level of pay or allowance 

The  social  security  allowances  concerning  the  leave  related  to  pregnancy,  abortion  and 
maternity are established by Decree-Law No. 91/2009, of 9 April 2009, and the amount 
paid varies according to the type of leave:  

- 

- 

- 

Maternity  leave  (meaning  ‘initial  parental  leave’,  as  it  is  called  in  Portugal),  when 
taken in the 120-days option, as well as the leave due to pregnancy risks, and also 
adoption leave,  are  paid  on  a  basis  of  100 %  of  the  average  salary  of  the  worker 
(Decree-Law No. 91/2009 of 9 April 2009, Articles 29, 30(a), 31 and 34); 
Maternity leave when taken in the 150-days option is paid on a basis of 80 % of the 
average salary of the worker (Decree-Law No. 91/2009 of 9 April 2009, Articles 30(b) 
and 34); 
Other pregnancy-related leave, such as pregnancy-related sickness leave, leave in 
the case of abortion, and leave related to night work and to dangerous work, when 
there is no alternative job available, are paid on the basis of 65 % of the salary, in 
line with the payment of sick leave (Decree-Law No. 91/2009 of 9 April 2009, Articles 
18, 19 and 35). 

There is no ceiling to the amount paid.  

5.3.6  Additional statutory maternity benefits 

Employers  may  have  to  supplement  the  statutory  maternity  benefits  up  to  the  normal 
remuneration  on  the  basis  of  a  collective  agreement  stipulating  such  an  obligation  or  if 
they have agreed to do so in the employment contract. 

34 

 
 
 
 
 
 
 
 
 
 
 
 
 
5.3.7  Conditions for eligibility (Article 11(4) of Directive 92/85) 

Under the Portuguese system the right to maternity leave and to other forms of parental 
leave  is  not  subjected  to  special  conditions  for  eligibility,  including  seniority  in  the 
company. To the contrary, a minimum period of six months of contributions to the public 
social security system is required to have access to the public allowances attached to those 
types of leave (Article 25 of Decree-Law No. 91/2009, of 9 April 2009). 

5.3.8  Right to return to the same or an equivalent job (Article 15 of Directive 2006/54) 

Under Article 65(6) of the LC, at the end of maternity leave or of other form of parental 
leave, the woman has the right to return to her previous activity – as does the man when 
he enjoys maternity, paternity or parental leave. If any improvement in working conditions 
to  which  she/he  would  have  been  entitled  during  her/his  absence  has  occurred  in  the 
meantime, she/he is entitled to take advantage of it, since she/he cannot be penalised in 
any right attached to the employment contract due to the exercise of maternity/paternity 
rights (Article 61(1) of the LC).  

5.3.9  Legal right to share maternity leave 

As indicated above, only the compulsory period of six weeks after giving birth (which in 
the Labour Code is called the ‘initial parental leave just for the mother’ (Article 41 of the 
LC))  cannot  be  shared  between  the  mother  and  the  father.  The  remaining  period  of 
maternity leave (called ‘initial parental leave’), which in total may go up to 120 or to 150 
days, depending upon the choice of the parents, can be divided between them (Article 40 
of the LC). 

This choice is independent from the father taking paternity leave,  which is autonomous 
leave which the father enjoys during the ‘initial parental leave just for the mother’. 

In practice, women tend to make use of most of the duration, if not the entire duration, 
of maternity leave. 

Maternity leave is taken on a full-time basis, as imposed by the LC (Article 40), and the 
taking of the leave is not negotiable with the employer, and does not depend upon  the 
size of the company.  

5.3.10 Case law 

To the author’s knowledge, there is no case law concerning the use of maternity leave.  

5.4  Adoption leave 

5.4.1  Existence of adoption leave in national law 

In Portugal, adoption leave is an autonomous leave, but it follows the pattern of maternity 
leave (in Portuguese, ‘initial parental leave’). 

Adoption leave is granted to both parents on the same conditions as those established for 
the ‘initial parental leave’ (meaning for a period of 120 or 150 days and paid accordingly), 
provided the adopted child is younger than 15 and is not the son/daughter of the husband, 
wife or life partner of the adoptive parent.  

The parents can divide the full period of the leave between them (Article 44 of the LC), 
and if they choose to take the longer leave of 150 days, they can also take advantage of 
the right to take the last 30 days simultaneously (Article 40(2) of the LC, introduced by 
Law No. 120/2015, of 1 September 2015), applied by way of Article 44(1) of the LC. 

35 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.4.2  Protection against dismissal (Article 16 of Directive 2006/54) 

Considered as a maternity- and paternity-related right, adoption leave is protected in the 
same way as maternity and parental leave. 

Dismissal  during  this  leave  is  unlawful  and  therefore  forbidden  (Article  53  of  the 
Portuguese Constitution, and Articles 338 and 63(2) of the LC). In addition, if the worker 
is dismissed on the ground of applying for or using adoption leave, the dismissal is null 
and void and he/she has the  right to  reinstatement.  However, if he/she decides not go 
back,  he/she  has  the  right  to  accrued  damage  compensation  (calculated  at  double  the 
basis  of  15  to  45  days  per  year  of  the  employment  contract  (Article  63(8)  and  Article 
392(1) of the LC). 

In addition to this general prohibition, if any form of dismissal occurs while the worker is 
on adoption leave (e.g. collective dismissal or other objectively motivated dismissal), the 
dismissal is still presumed unlawful and has to follow a different procedure involving the 
CITE (‘Agency for Gender Equality in Employment’), which has to approve the dismissal in 
advance  (Article  63  of  the  LC).  If,  in  the  end,  an  employee  is  made  redundant  during 
adoption leave, the payment for adoption leave as such will cease, since this payment is 
granted by the public social security system to workers with an employment contract, but 
it will be replaced by unemployment allowance, also granted by the public social security 
system. 

5.4.3  Case law 

The author is not aware of case law regarding adoption leave. 

5.5  Parental leave 

5.5.1  Implementation of Directive 2010/18 

Directive  2010/18  has  not  been  formally  implemented  in  Portugal.  Since  national 
legislation  already  provides  for  several  successive  types  of  leave  which,  if  considered 
together,  are  more  extensive  than  the  EU  provisions  on  parental  leave,  and  because 
parental leave is already granted by the Labour Code on a non-transferable basis, this led 
the  Portuguese  authorities  to  consider  that  there  was  no  need  to  formally  transpose 
Directive 2010/18. 

In national legislation, parental leave has a broad sense (that includes maternity leave) 
and a strict sense. In this strict sense (which corresponds to the EU concept of parental 
leave, e.g. the leave taken after maternity leave to take care of a child), there are several 
types of leave for care purposes:  

- 

- 

- 

the strict parental leave, which in Portuguese is known as ‘additional parental leave’ 
(‘licença parental complementar’), taken after maternity leave (Article 51 LC); 
several  ‘special  leave  for  the  care  of  children’  (called  ‘licenças  para  assistência  a 
filho’) to take care of small children, disabled children or children with a long-term 
illness, which can be taken after strict parental leave (Articles 52 and 53 LC);  
‘grandparent’s  leave’  (e.g.  the  right  to  a  leave  of  absence  from  work  to  assist  a 
daughter younger than 16 who has given birth, for a maximum of 30 days – Article 
50 of the LC). 

5.5.2  Applicability to public and private sectors (Clause 1 of Directive 2010/18) 

Portuguese  legislation  regarding  parental  leave  is  applicable  to  both  the  public  and  the 
private sector, according to the same terms. As regards private workers, this issue is dealt 

36 

 
 
 
 
 
 
 
 
 
 
 
 
with  in  the  LC  (Articles  51,  52  and  53).  The  same  provisions  are  directly  applicable  to 
public servants, based on a reference to Article 4 of the ‘Lei Geral do Trabalho em Funções 
Públicas’ (‘Public Servants General Law), approved by Law No. 35/2014, of 20 June 2014, 
which regulates employment contracts of civil servants. 

5.5.3  Scope of the transposing legislation 

The  scope  of  the  national legislation  in  the  field  of  parental  leave  is  wide,  since  the  LC 
applies  not  only  to  open-ended  employment  contracts,  but  also  to  employment 
relationships relating to part-time workers, fixed-term contract workers, teleworkers, or 
persons with an employment relationship with a temporary agency. 

5.5.4  Length of parental leave 

The  total  duration  of  parental  leave  in  Portuguese  legislation,  which  is  the  same  in  the 
public and the private sector, as indicated above, depends on whether the leave is taken 
on a full-time basis or on a part-time basis and also on whether we are thinking of the 
strict ‘additional parental leave’ (e.g. the leave that follows maternity  leave and can be 
taken until the child is six years old – Article 51 of the LC) or of the extended concept of 
parental  leave  (thus  including  some  of  the  period  of  the  ‘special  leave  for  the  care  of 
children’ taken after ‘parental leave in the strict sense’ (Articles 40(2), 51(1) and 52 LC).  

When  taking  into  account  the  strict  concept  of  parental  leave,  the  total  duration  of  the 
leave  is  three  months  (on  a  full-time  basis)  or  12  months  (on  a  part-time  basis),  or  a 
combination of the two (Article 51(1) LC). However, this period can be followed by the so-
called ‘special leave for the care of children’, which can go up to two years, or three years 
for the third child and four years for disabled children or children with a long-term illness 
(Articles 52 and 53 LC), in successive periods of six months.  

So,  when  considering  these  two  types  of  leave  together,  it  is  possible  to  say  that 
Portuguese legislation complies with Clause 1(1) of the Agreement adopted by Directive 
2010/18. 

5.5.5  Age limits 

The  age  limits  of  the  child  for  the  purposes  of  taking  the  leave  is  six  years  old  (Article 
51(1) of the LC). 

However, this age limit does not apply in the case of disabled children or children with a 
long-term illness (Article 53(1) of the LC).  

5.5.6  Individual nature of the right to parental leave  

In Portugal, the right to parental leave is an individual right of each parent and the law 
does not allow for the transfer of the right from one parent to the other (Article 51(2) of 
the  LC).  This  being  the  case,  the  right  to  retain  a  minimum  period  of  the  leave  for  the 
individual use of one of the parents (as prescribed in Clause 2(2) of the Agreement adopted 
by Directive 2010/18) does not apply in national law. 

5.5.7  Transferability of the right to parental leave  

As indicated above, the law does not allow for the transfer of the right from one parent to 
the other (Article 51(2) of the LC). 

37 

 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
5.5.8  Form of parental leave 

Parental  leave  in  the  strict  sense  (meaning  in  Portuguese  ‘additional  parental  leave’  – 
Article  51  LC)  can  be  taken  on  a  full-time  or  a  part-time  basis,  or  in  a  combined 
arrangement. When taken on a part-time basis, parental leave can go up to 12 months; 
when taken on a full-time basis, it can go up to three months. ‘Special leave for the care 
of children’ (or extended parental leave) can be taken on a full-time basis (Articles 52 and 
53). 

Parental leave can be taken in a piecemeal way, in a maximum of three periods (Article 
51(2) of the LC). 

5.5.9  Work and/or length of service requirements (Clause 3(b) of Directive 2010/18)  

Under  the  Portuguese  system,  the  right  to  parental  leave  is  not  subjected  to  special 
conditions for eligibility, including seniority in the company. To the contrary, a minimum 
period  of  six  months  of  contributions  to  the  public  social  security  system  is  required  to 
have access to the public allowances attached to those types of leave (Article 25 of Decree-
Law No. 91/2009, of 9 April 2009). 

5.5.10 Notice period 

The right to parental leave depends on a notice period of 30 days prior to the leave (Article 
51(5)  LC,  as  regards  parental  leave  in  the  strict  sense,  and  Article  52(6),  as  regards 
‘special leave for the  care of children’). The request must be made in writing and must 
indicate  the  form  and  the  length  of  the  leave  required.  There  is  no  length  of  service 
requirement in order to benefit from parental leave or special leave, but only in order to 
benefit from the social security allowance attached to it. 

5.5.11 Postponement of parental leave (Clause 3(c) of Directive 2010/18) 

Both  additional  parental  leave  and  special  leave  for  care  of  children  are  a  right  of  the 
worker which prevails over the needs of the employer, so the leave cannot be refused by 
the employer. Also, to ensure that the leave is taken for the right purpose, the law forbids 
the worker to perform another professional activity incompatible with care, while on leave 
(Article 51(4) LC). 

The  only  situation  where  the  granting  of  parental  leave  may  be  postponed  for  reasons 
related  to  the  operation  of  the  organisation,  is  when  both  parents  work  for  the  same 
employer and they both wish to enjoy the leave simultaneously. In this case, the employer 
can  postpone  the  leave  of  one  of  the  parents  on  the  ground  of  imperative  operational 
reasons of the business (Article 51(3) LC).  

5.5.12 Special arrangements for small firms (Clause 3(d) of Directive 2010/18) 

Both additional parental leave and special leave for the care of children are a right of the 
worker  which  prevails  over  the  needs  of  the  employer,  so  there  are  no  special 
arrangements for small firms in the Portuguese legislation. 

5.5.13 Special rules and exceptional conditions for parents of children with a disability or 

long-term illness (Clause 3(3) of Directive 2010/18) 

As  regards  the  adjustment  of  parental  leave  to  the  needs  of  parents  of  children  with  a 
disability or a long-term illness, the parents can take advantage of parental leave in the 
strict sense (‘additional parental leave’), under Article 51 LC, and after this leave they can 
take the ‘special leave for the care of children’, in the specific extended form that the LC 
establishes for those cases in Article 53 (this leave can go up to four years instead of two, 

38 

 
 
 
 
 
 
 
 
 
 
 
 
 
and the age limit of the child is increased to 12, and, on medical indication, can exceed 
that age). 

5.5.14 Measures addressing the specific needs of adoptive parents (Clause 4 of Directive 

2010/18) 

A  specific  measure  addressed  to  adoptive  parents  is  the  right  granted  to  candidates  to 
become  adoptive  parents  to  three  short  leaves  of  absence  for  reasons  linked  to  the 
adoption procedure (Article 45 LC). 

However,  this  measure  was  not  taken  as  a  consequence  of  Directive  2010/18  because 
Portugal found it unnecessary to formally transpose this Directive, as national legislation 
in place was already consistent with the Directive.  

5.5.15 Provisions  protecting  workers  against  less  favourable  treatment  or  dismissal 

(Clause 5(4) Directive of 2010/18) 

Parental leave is a maternity-related and paternity-related right, so it is protected in the 
same way as maternity leave, under the Portuguese legislation. 

Dismissal  during  this  leave  is  unlawful  and  therefore  forbidden  (Article  53  of  the 
Portuguese Constitution, and Articles 338 and 63(2) of the LC). In addition, if the worker 
is dismissed on the ground of applying for or  using parental leave, the dismissal is null 
and  void  and  he/she  has  the  right  to  be  reinstated,  but  if  he/she  decides  not  go  back, 
he/she has the right to accrued damage compensation (calculated at double the basis of 
15 to 45 days per year of the employment contract (Article 63(8) and Article 392(1) of the 
LC). 

In addition to this general prohibition, if any form of dismissal occurs while the worker is 
on parental leave (e.g. collective dismissal or other objectively motivated dismissal), the 
dismissal is still presumed unlawful and has to follow a different procedure involving the 
CITE (Agency for Gender Equality in the Field of Employment), which has to approve the 
dismissal in advance (Article 63 of the LC). 

5.5.16 Right to return to the same or an equivalent job (Clause 5(1) of Directive 2010/18) 

Workers benefitting from parental leave have the right to return to the same job or, if this 
is not possible, to an equivalent or similar job consistent with their employment contract 
or relationship at the end of the leave (Article 65(5) of the LC). 

5.5.17 Maintenance of rights acquired or in the process of being acquired by the worker 

(Clause 5(2) of Directive 2010/18) 

The rights acquired or in the process of being acquired by the worker on the date on which 
parental leave starts (again: not ‘special leave for the care of children’) stand until the end 
of parental leave and the period of the leave is considered for all purposes, except pay, as 
effective working time (Article 65(1) of the LC). 

5.5.18 Status of the employment contract or relationship during parental leave 

While the worker is on leave, the employment contract is suspended. 

5.5.19 Continuity of entitlement to social security benefits 

During the period of parental leave, there is continuity of the entitlements to social security 
cover under the different schemes, in particular healthcare. This is a specific consequence 
of the suspension of the employment contract, as, under the Labour Code (Article 295), 

39 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
during the suspension period all rights and duties of the parties that are not directly linked 
with the performing of the activity (for instance, seniority rights, or social security rights) 
are kept by the parties. 

5.5.20 Remuneration 

Under the Portuguese system, parental leave is not remunerated by the employer.  

However,  some  collective  agreements  establish  that  the  employer  must  cover  the 
difference between the amount of the social security allowance attached to parental leave 
and the amount of the salary that the worker would be entitled to, if he/she was not on 
leave. 

5.5.21 Social security allowance 

The public social security system provides for  an allowance in the  first three  months  of 
parental  leave  provided  that  the  leave  is  taken  immediately  after  the  end  of  maternity 
leave by the other parent (Article 16 of Law No. 91/2009, of 9 April 2009). This allowance 
is granted in all sectors, provided the worker has a minimum of six months of contributions 
to the social security system (Article 25 of this Law). The amount of the allowance is 25 % 
of the average salary of the worker, with no upper limits. 

5.5.22 More favourable provisions (Clause 8 of Directive 2010/18) 

Portuguese legislation is more favourable than Directive 2010/18 as regards parental leave 
when combining the various types of leave and the other measures described above, since 
the  extent  of  the  leave  largely  exceeds  the  minimum  of  four  months  of  parental  leave 
prescribed in the Directive.  

The national legislation is also more favourable as regards some specific forms of family 
assistance such as the grandparent’s leave (e.g. the right to a leave of absence from work 
to assist a daughter younger than 16 who has given birth, for a maximum of 30 days – 
Article 50 of the LC), and finally as regards the control intervention of the CITE (Agency 
for Gender  Equality in the Field of Employment)  in relation to dismissal during parental 
leave. 

5.5.23 Case law  

There are not many judicial actions regarding parental leave.  

For instance, in 2018, there was no case law published in this area and in 2017, there was 
a judgment of the Court of Appeal of Lisbon, in a case relating to the dismissal of a worker 
during parental leave (Acórdão do Tribunal da Relação de Lisboa de 13/09/2017 – Proc. 
No.  26175/15.6T8LSB.L1-4).  In  this  case,  the  Court  had  no  doubt  in  considering  the 
dismissal null and void, because when on parental leave, the worker cannot be dismissed 
without the previous and positive advice of the CITE (Agency for Gender Equality in the 
Field of Employment) and the employer did not ask for the CITE’s advice.   

5.6  Paternity leave 

5.6.1  Existence of paternity leave in national law 

Portuguese legislation provides for an autonomous paternity leave, which is called ‘initial 
parental leave just for the father’ (Article 43 of the LC). 

This  leave  is  divided  into  two  periods,  the  first  one  with  a  compulsory  nature  and  the 
second one with a non-compulsory nature. The length of  this leave used to be 10 days 

40 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
when the mother gives birth, followed by 10 more days during maternity leave. However, 
the  LC  has  been  changed  in  this  respect,  by  Law  No.  120/2015,  of  1  September  2015, 
which established the following duration: 15 initial and compulsory days, five of each to 
be taken when the mother gives birth, and the other 10 days in the  child’s first month; 
plus 10 more non-compulsory days, to be enjoyed while the mother is on maternity leave. 
In short, the change introduced in the LC has  increased the duration of the compulsory 
part of paternity leave by five days. 

Paternity leave is paid by social security on the basis of 100 % of the average salary of 
the father (Article 15 of Decree-Law No. 91/2009, of 9 April 2009). 

Since it became paid by the social security system, paternity leave is increasingly being 
taken by the fathers, including in the non-compulsory period.  

5.6.2  Protection against unfavourable treatment and/or dismissal (Article 16 of Directive 

2006/54) 

Paternity leave is a paternity-related right in Portugal, so it is protected in the same way 
as maternity leave. 

Dismissal  during  this  leave  is  unlawful  and  therefore  forbidden  (Article  53  of  the 
Portuguese Constitution, and Articles 338 and 63(2) of the LC). In addition, if the worker 
is dismissed on the ground of applying for or using paternity leave, the dismissal is null 
and void and he has the right to be reinstated, but if he decides not  to go back, he has 
the right to accrued damage compensation (calculated at double the basis of 15 to 45 days 
per year of the employment contract (Article 63(8) and Article 392(1) of the LC). 

In addition to this general prohibition, if any form of dismissal occurs while the worker is 
on paternity leave (e.g. collective dismissal or other objectively motivated dismissal), the 
dismissal is still presumed unlawful and has to follow a different procedure involving the 
CITE (Agency for Gender Equality in the Field of Employment), which has to approve the 
dismissal in advance (Article 63 of the LC).  

5.6.3  Case law 

The author is not aware of case law regarding paternity leave. 

5.7  Time off/care leave 

5.7.1  Existence of care leave in national law (Clause 7 of Directive 2010/18) 

Under  the  Portuguese  legislation,  workers  are  entitled  to  unpaid  time  off  from  work  on 
grounds of force majeure for urgent family reasons in the case of sickness or accident of 
the child, for a maximum of 30 days per year, or a maximum of 15 days per year to take 
care of a child under 12 or over 12, respectively, and, regardless of age, for a disabled or 
chronically ill child. These time limits can be exceeded in the case of hospitalisation of the 
child and also in the case of a second (or further) child (Article 49 LC).  

However,  this  right is  conditional  on  the  requirement  that  the  absence  of  the  worker  is 
inevitable, in the sense that he/she cannot be replaced in caring for the child.  

5.7.2  Case law  

The author is not aware of case law regarding care leave. 

41 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.8  Leave in relation to surrogacy 

Traditionally,  surrogacy  was  not  permitted  in  Portugal,  so  if  the  situation  arose,  all  the 
rights attached to pregnancy and maternity, including the leave, would be recognised for 
the woman who gives birth, since for all purposes, she would be considered the mother of 
the child. The LC provisions in this field are also based on the traditional recognition of the 
woman who gives birth as the mother of the child. 

However, a new piece of legislation was approved in 2016: Law No. 25/2016, of 22 August 
2016,  changing  Law  No.  32/2006,  of  26  July  2006,  to  regulate  medically  assisted 
pregnancy. This legislation allows for surrogacy on very strict conditions, which are now 
indicated in Article 8 of Law No. 32/2006.  

If these conditions are met, the woman carrying the child renounces all rights and duties 
attached to maternity (Article 8 No. 1) and the child will be considered for all purposes as 
the son/daughter of the beneficiaries of the surrogacy procedure (Article 8 No. 7).  

The  absence  of  other  references  to  parental  rights  in  this  piece  of  legislation  made  it 
difficult to assess the consequences of surrogacy not only in relation to parental leave but 
also  in  relation  to  the  protection  of  the  surrogate  ‘mother’  during  pregnancy  and 
immediately after giving birth.  

These  issues  were  later  dealt  with  by  a  complementary  act  to  this  law  (Decreto 
Regulamentar No. 6/2017, of 31 July 2017), in which Article 6 establishes the following: 
the  woman  carrying  the  child  is  granted  the  right  to  a  leave  after  giving  birth  with  the 
same  duration  of  abortion  leave  (i.e.,  between  14  and  30  days  leave,  upon  medical 
determination,  as  indicated  in  Article  37(1)  of  the  LC);  she  also  has  the  rights  to  short 
leaves of absence justified by pregnancy; the legal parents of the child are entitled to all 
maternity and paternity rights attached. 

In the  view of the author, this legislation still needs to be complemented by the LC, as 
regards the provisions relating to the protection of female workers who are pregnant, since 
a literal interpretation of Article 6 of Decreto Regulamentar No. 6/2017, of 31 July 2017, 
does not grant the necessary protection to the surrogate ‘mother’ during pregnancy and 
a  lower  protection  of  these  women  would  be  unacceptable.  It  would  also  constitute  a 
violation  of  gender  equality  law,  taking  into  consideration  that  provisions  related  to 
pregnancy and maternity are part of gender equality regulations.  

In  this  sense,  maternity  rights  related  to  pregnancy  (including  pregnancy  leave,  health 
and  safety  protection  measures  during  pregnancy,  and  protection  against  dismissal), 
established by the LC, must be granted to the woman who gives birth, alongside the leave 
relating to abortion leave after giving birth, granted by Article 6 of Decreto Regulamentar 
No.  6/2017,  of  31  July  2017.  In  this  sense,  the  surrogate  mother´s  renunciation  of  all 
rights and duties attached to maternity (as indicated in Article 8 No. 1 of Law No. 32/2006, 
of 26 July 2006, as amended by Law No. 25/2016, of 22 August 2016) is of no consequence 
as regards the maternity rights indicated immediately above.  

It is also to be noted that, after coming into force, Law No. 25/2016, of 22 August 2016, 
was  brought  before  the  Constitutional  Court  by  some  members  of  Parliament.  The 
Constitutional  Court,  in  its  judgment  No.  225/2018  (Acórdão  do  Tribunal  Constitucional 
No.  225/2018,  of  7  May  2018),24  considered  that  some  of  the  provisions  of  Law  No. 
32/2006,  of  26  July  2006,  as  amended  by  Law  No.  25/2016,  of  22  August  2016,  were 
against the Portuguese Constitution, because they offended the principle of human dignity 
in relation to the child and also in relation to the ‘surrogate’ mother.  

24   Published in the official journal on 7/05/2018 (www.dre.pt). 

42 

 
 
 
 
 
 
 
 
 
                                                   
Article 8 of this Act is among the provisions judged unconstitutional, namely as regards 
the prohibition imposed upon the surrogate mother to repeal her declaration renouncing 
all rights and duties attached to maternity after the signing of the surrogate pregnancy 
contract.  The  Court  considered  that  the  ‘surrogate’  mother  can  change  her  mind  and 
decide  to  keep  the  child  until  giving  birth,  since  another  solution  would  be  contrary  to 
human dignity. 

Naturally, if this happens, all maternity rights (including the right to maternity and parental 
leave) have to be granted to the ‘surrogate’ mother.  

5.9  Flexible working time arrangements 

5.9.1  Right to reduce or extend working time 

Under the Portuguese legislation, when returning from parental leave or from maternity 
leave, workers can request the following changes to their working hours and/or patterns 
for the purpose of reconciling work and family life: 

- 

- 

Working mothers who are breastfeeding (and also fathers, if the baby is bottle-fed) 
have  the  right  to  refuse  night  work,  overtime  work  and  flexible  working-time 
arrangements instated by the  company on the ground  of entrepreneurial reasons, 
while breastfeeding or until the child is one year old (Articles 58, 59 and 60 LC); 
The parent of a disabled child or a child under one year old with a long-term illness 
has the right to a reduction of working time of five hours per week to take care of 
the child (Article 54 LC). 

There  are  no  specific  eligibility  criteria  (e.g.  a  qualifying  period  of  service  or  history  of 
social contributions) or specific conditions to apply for these schemes. 

5.9.2  Right to adjust working time patterns 

The  Portuguese  Labour  Code  also  offers  the  following  possibilities  with  respect  to  the 
adjustment  of  working  patterns,  for  a  better  accommodation  of  work  with  family 
responsibilities: 

- 

- 

The worker with family responsibilities has the right to change to a part-time job, for 
two years (three years for a third child and four years for a disabled child or a child 
with a long-term illness), provided the child is under twelve or independently of that 
age limit for a disabled child or child with a long-term illness (Article 55 LC); 
The worker with a child under twelve (or independently of that age limit for disabled 
children or children with a long-term illness) has the right to perform the job under 
flexible working-time arrangements (Article 56 LC). 

As  regards  the  requests  for  part-time  or  flexible  working-time  arrangements  for  care 
purposes, they can be refused by the employer on the grounds of compelling operational 
reasons or of the impossibility of replacing the employee, but this justification has to be 
considered  valid  by  the  public  agency  ‘Comissão  para  a  Igualdade  no  Trabalho  e  no 
Emprego’ – CITE (‘Agency for Gender Equality in the Field of Employment’) and if the CITE 
does not agree, the employer must challenge the decision of the CITE before the Court 
(Article 57 LC).  

There  are  no  specific  eligibility  criteria  (e.g.  a  qualifying  period  of  service  or  history  of 
social contributions) or specific conditions to apply for these schemes. 

In addition to these schemes, some limitations to the application of flexible working-time 
arrangements on the grounds of entrepreneurial reasons (such as adaptable working time 
and banking of hours established in collective agreement or by company regulation), which 

43 

 
 
 
 
 
 
 
 
 
 
 
 
may have a negative impact on reconciliation of family and working life, are now imposed 
by the LC (in the changes introduced by Law No. 120/2015, of 1 September 2015): since 
then, these flexible working-time arrangements determined by collective agreements or 
by company regulations cannot be imposed on workers with children under three without 
the specific and written consent of the working parent (Articles 206(4)(b) and 208-B(3)(b) 
of the LC).  

5.9.3  Right to work from home or remotely  

The  LC  has  been  changed  by  Law  No.  120/2015,  of  1  September  2015,  in  order  to 
introduce the legal right to telework for reconciliation purposes. 

In  this  sense,  the  worker  with  a  child  under  three  has  the  right  to  telework  if  the 
professional activity performed is compatible with this form of work and the employer can 
provide the necessary means to make that change possible (Article 166(3) of the LC).  

Provided the technical conditions are met, the employer cannot refuse the worker’s request 
to become a teleworker (Article 166(4) of the LC). This situation can be reversed later if 
the parties agree (Article 166(4) of the LC). 

There  are  no  specific  eligibility  criteria  (e.g.  a  qualifying  period  of  service  or  history  of 
social contributions) or specific conditions to apply for this scheme. 

5.9.4  Other legal rights to flexible working arrangements 

In Portugal there are no other schemes related to flexible working time arrangements and 
aiming to promote better reconciliation of work and family life. To the contrary, since in 
Portuguese  legislation  flexible  working-time  arrangements  are  mostly  adopted  for 
entrepreneurial  reasons  (this  is  the  case  for  adaptable  working-time  arrangements  and 
banking hours), which may have a negative impact on reconciliation of family and working 
life,  the  law  tends  to  impose  more  limitations  on  these  schemes  in  their  application  to 
workers with young children, as explained above (Articles 206(4)(b) and 208-B(3)(b) of 
the LC).  

In view of the negative repercussions of flexible working-time arrangements adopted for 
entrepreneurial reasons, some changes were introduced in the LC by Law No. 120/2015 
of 1 September 2015, intended to impose some limitations on these flexible working-time 
arrangements on the ground of entrepreneurial reasons (such as adaptable working time 
and ‘banking of hours’, which is a system by which the employer and the employee, having 
agreed  on  a  certain  total  number  of  working  hours  for  a  certain  period  of  time,  keep  a 
register of the number of hours worked every day and may be either in credit or in debt 
to each other, until the agreed time limits are reached). From now on, flexible working-
time arrangements determined by collective agreements, or by the internal regulation of 
the company, can no longer be imposed on workers with children under three without the 
specific and written consent of the working parent (Articles 206 No. 4(b) and 208-B No. 
3(b) of the LC).  

In the view of the author, these provisions may play an important role in the promotion 
of reconciliation between family and professional life. 

5.9.5  Case law  

The  author  is  not  aware  of  case  law  regarding  flexible  working  time  arrangements  in 
relation to work-family balance and care.  

44 

 
 
 
 
 
 
 
 
 
 
 
 
 
5.10 Evaluation of implementation 

In the author’s view, the Portuguese legislation is a good example of law in books being 
different from law in action.  

As indicated above, the Portuguese legislation has adopted all the mechanisms established 
in EU law in relation to the protection of maternity, paternity and  care and intended to 
promote a better reconciliation between professional and family life. In fact, in this respect, 
the rights granted and the mechanisms provided by domestic legislation even go beyond 
EU law.  

However,  in  practice,  the  protection  of  maternity  (especially  during  pregnancy  and 
immediately after giving birth) is still needed, since pregnant women and young mothers 
face more difficulties in being hired and are more easily dismissed.  

Also,  a  balanced  reconciliation  of  work  and  family  life  between  working  parents  is  in 
practice  very  difficult  to  achieve.  Since  care  responsibilities  are  still  considered 
predominantly  as  female  tasks,  and  since  most  women  in  Portugal  work  full-time,  the 
burden  on  women  in  this  respect  is  still  much  higher  than  the  burden  on  men,  with 
inevitable consequences in women’s careers, in pay, etc. 

In the author’s view, since this situation results mostly from the social stigma attached to 
care and family responsibilities, the legislation should mainly focus  on the promotion of 
the role of the fathers within the family and on paternity rights, so that, in the long term, 
the share of family responsibilities may become more balanced. 

5.11 Remaining issues 

The author has no remaining issues to report on this topic. 

45 

 
 
 
 
 
 
 
 
 
 
6 

Occupational social security schemes (Chapter 2 of Directive 2006/54) 

6.1  General (legal) context 

A  brief  overview  of  the  Portuguese  social  security  system  as  regards  the  occupational 
social security system is essential before answering the questions asked about this topic. 

In Portugal, occupational social security schemes are rare, due to the universal scope of 
the general public social security system.  In addition, over the  years almost all specific 
social  security  schemes  (some  of  which  cover  many  benefits  and  others  have  a  more 
limited scope) have been integrated into the public social security scheme. 

The Portuguese legislation regarding occupational social security systems are Decree-Law 
No. 12/2006 of 20 January 2006 and Decree-Law No. 307/97 of 11 November 1997. The 
first law regulates the trust funds that deal with professional social security schemes. The 
second  one  has  transposed  Directive  86/378/EEC,  including  the  changes  introduced  by 
Directive 96/97/EC, into national law. 

Professional social security systems are intended either to complement or to replace the 
legal and public statutory social security system (Article 1 of Decree-Law No. 307/97, of 
11 November 1997). Old-age pensions, as well as invalidity pensions and survivors’ and 
other family-support pensions can integrate these systems (Article 4 of Decree-Law No. 
307/97 and Article 6(1) of Decree-Law No. 12/2006, of 20 January 2006).  

To  some  extent,  the  fact  that  professional  social  security  systems  have  no  practical 
meaning in the country explains the answers to some of the questions asked  about this 
topic.  

6.1.1  Surveys  and  reports  on  the  practical  difficulties  linked  to  occupational  and/or 

statutory social security issues 

The  author  is  not  aware  of  specific  surveys  concerning  gender  equality  in  relation  to 
occupational social security schemes.  

6.1.2  Other issues related to gender equality and social security 

The author has nothing to report in this respect. 

6.1.3  Political and societal debate and pending legislative proposals 

To  the  author’s  knowledge  there  is  no  societal  or  political  debate  on  gender  equality in 
relation  to  occupational  social  security  schemes,  and  there  are  no  pending  legislative 
proposals in this area. 

6.2  Direct and indirect discrimination 

Article 6(1) of Decree-Law No. 307/97, of 11 November 1997, explicitly prohibits direct 
and indirect sex discrimination. 

6.3  Personal scope 

The personal scope of national legislation in this area is defined in Article 3 of Decree-Law 
No. 307/97 of 11 November 1997, completely in line with Article 6 of Directive 2006/54.  

46 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
6.4  Material scope 

The material scope of national legislation in this area is defined in Article 4 of Decree-Law 
No. 307/97, of 11 November 1997, completely in line with Article 6 of Directive 2006/54. 

6.5  Exclusions 

Portugal has applied the  exclusions allowed by  the Directive, in relation to the  material 
scope  of  the  legislation.  These  exclusions  are  defined  in  Article  5  of  Decree-Law  No. 
307/97, of 11 November 1997, completely in line with Article 6(1) of Directive 2006/54, 
the exclusions being exactly the same. 

6.6  Laws  and  case  law  falling  under  the  examples  of  sex  discrimination 

mentioned in Article 9 of Directive 2006/54 

Article 7 of Decree-Law No. 307/97, of 11 November 1997, includes a list of discriminatory 
practices in the field of occupational social security schemes that meet the examples of 
discrimination stated in Article 9 of Directive 2006/54.  

As regards case law, the author has no knowledge of actions brought before the courts to 
deal with these issues. 

6.7  Actuarial factors 

As far as the author knows, the actuarial factors used by these schemes are the same as 
those used by statutory schemes. Nevertheless, Decree-Law No. 307/97, of 11 November 
1997, establishes as a general principle that actuarial rules used to determine the amount 
of the benefit must not be discriminatory and must promote gender equality (Article 7).  

The author has no specific information as to whether sex is used as an actuarial factor. 

6.8  Difficulties 

The main difficulties regarding this area rely on the fact that, in addition to the general 
provisions  on  gender  equality  established  by  Decree-Law  No.  307/97,  of  11  November 
1997 (i.e. the establishment of a gender equality principle in this area (Article 6) and the 
prohibition of discriminatory practices, complemented by the examples of discriminatory 
practices  in  this  area  (Article  7(1)(c)  and  (f)),  the  occupational  social  security  systems 
differ significantly, due to their private nature and also depending on the complementary 
or replacing nature of each of them.  

When  they  are  complementary  to  the  statutory  social  security  system,  professional 
occupational systems are based on the model of the statutory old-age pension system that 
they mean to complement. When they replace the legal system (which is very rare) they 
are based on private conditions, usually agreed upon in collective agreements or in private 
pension plans within companies, which are impossible to trace. 

6.9  Evaluation of implementation 

The precedent analysis allows for the conclusion that EU law in the field of gender equality 
in occupational social security schemes has been transposed into domestic legislation. In 
fact,  the  transposition  of  EU  law  in  this  respect  was  made  in  the  strictest,  ‘copy  paste’ 
manner.  

However, this is of no consequence, since, as indicated above, in Portugal, occupational 
social security schemes are rare, due to the universal scope of the general public social 
security  system.  In  addition,  over  the  years  almost  all  specific  social  security  schemes 

47 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
(some  of  which  cover  many  benefits;  others  having  a  more  limited  scope)  have  been 
integrated into the public social security scheme, so the practical meaning of such schemes 
today is of no significance.  

6.10 Remaining issues 

The author has nothing to add on this topic. 

48 

 
 
 
 
7 

Statutory schemes of social security (Directive 79/7) 

7.1  General (legal) context 

A brief overview of the Portuguese social security system is essential before answering the 
questions asked.  

In Portugal, the right to social security is a universal and fundamental right (Article 63(1) 
of  the  Portuguese  Constitution),  which  must  be  granted  by  the  Portuguese  State. 
Therefore, the social security system is a public statutory system.  

The situations contemplated by Directive 79/7 are covered at national level by the ‘Lei de 
Bases da Segurança Social’ (‘Social Security General Law’) – Law No. 4/2007 of 16 January 
2007). However, there is no specific legislation explicitly transposing this Directive. 

The ‘Social Security General Law’ establishes two social security systems. The first one is 
the ‘system of social citizenship protection’, which integrates three subsystems: the ‘social 
action  subsystem’  (intended  to  promote  actions  in  the  social  field);  the  ‘solidarity 
subsystem’  (intended  to  eradicate  poverty  in  situations  that  do  not  fall  under  the 
‘contribution’  system);  and  the  ‘family  protection  subsystem’  (intended  to  compensate 
people for specific family charges). The second social security system is the ‘contribution 
system’, which is intended to compensate the social risks of persons with a professional 
activity, and is based on the contributions of employers and employees.  

This second and more general system (‘contribution system’) integrates social protection 
related to sickness, invalidity and old-age pensions, family allowances (in situations related 
to maternity, paternity and adoption), involuntary unemployment, accidents at work and 
occupational diseases, in the sense of Article 3 of Directive 79/7.  

The  contribution  system  is  developed  by  the  ‘Código  dos  Regimes  Contributivos  de 
Segurança Social’ – CRCSS (‘Contribution System of the Social Security Code’), approved 
by Law No. 110/2009, of 16 September 2009. This Code deals with the several benefits 
granted in the contribution system to employees, self-employed persons and other specific 
categories of workers, with the exception of public servants (who are covered by a specific 
regulation  in  the  area  of  social  security).  Specific  legislation  related  to  each  benefit 
complements this Code. Consequently, the Portuguese legal system in this area is rather 
complex.  

7.1.1  Surveys and reports on the practical difficulties linked to statutory schemes of social 

security (Directive 79/7) 

The  author  is  not  aware  of  specific  surveys  concerning  gender  equality  in  relation  to 
statutory social security schemes.  

7.1.2  Other relevant issues  

The author has nothing to report in this respect. 

7.1.3  Overview of national acts 

The main acts in the field of statutory social security are the following: 

- 

- 

Portuguese Constitution (Article 63(1)), establishing the right to social security as a 
universal  and  fundamental  right  of  all  citizens,  which  must  be  granted  by  the 
Portuguese State. Therefore, the social security system is a public statutory system. 
‘Lei de Bases da Segurança Social’ (‘Social Security General Law’) (Law No. 4/2007 
of  16  January  2007),  covering  the  situations  contemplated  by  Directive  79/7  at 

49 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
- 

- 

national  level.  However,  there  is  no  specific  legislation  explicitly  transposing  this 
Directive. 
‘Código dos Regimes Contributivos de Segurança Social’ (‘Contribution System of the 
Social  Security  Code’)  (CRCSS).  The  major  social  security  system  created  by  the 
Social Security General Law is developed by this Code, that was approved by Law 
No.  110/2009,  of  16  September  2009.  This  Code  deals  with  the  several  benefits 
granted in the contribution system to employees, self-employed persons and other 
specific categories of workers, with the exception of public servants (who are covered 
by  a  specific  regulation  in  the  area  of  social  security).  This  system  (‘contribution 
system’)  integrates  social  protection  related  to  sickness,  invalidity  and  old-age 
pensions,  family  allowances  (in  situations  related  to  maternity,  paternity  and 
adoption), involuntary unemployment, accidents at work and occupational diseases, 
in the sense of Article 3 of Directive 79/7.  
Specific legislation related to each benefit complements this Code (in this sense, for 
instance,  Decree-Law  No.  187/2007,  of  10  Mai  2007,  on  old-age  and  invalidity 
pensions).  

As indicated above, the Portuguese legal system in this area is rather complex.  

7.1.4  Political and societal debate and pending legislative proposals 

To  the  author’s  knowledge  there  is  no  societal  or  political  debate  on  gender  equality in 
relation  to  statutory  social  security  schemes,  and  there  are  no  pending  legislative 
proposals in this area. 
More generally, issues related to statutory pensions are  regularly debated, especially in 
relation to retirement age, and also taking into consideration the financial sustainability of 
the public system of pensions, but this discussion has no gender dimension. 

7.2  Implementation of the principle of equal treatment for men and women in 

matters of social security 

The  principle  of  equal  treatment  for  men  and  women  in  matters  of  social  security  is 
established by the Social Security General Law (Article 7). It is one of the so-called ‘general 
principles’ of the Portuguese social security system. 

Another principle of this system of relevance to gender equality is the ‘principle of positive 
differentiation’ (Article 10 of the Social Security General Law), which allows for flexibility 
of the benefits, taking into account a certain number of factors, including family and social 
factors, such as a very low level of income of the family, or the number of dependents of 
the  family,  or  the  fact  that  it  is  a  one-parent  family,  or  the  fact  that  a  member  of  the 
family  is  handicapped.  However,  these  positive  differentiation  factors  are  developed  in 
more specific legislation. 

7.3  Personal scope 

The personal scope of national legislation in this area is defined in Article 51 of the Social 
Security General Law and in Article 24 of the CRCSS, which are in line with Article 2(1) of 
Directive 79/7.  

7.4  Material scope 

The material scope of national legislation in this area is defined in Article 52 of the Social 
Security General Law and in Articles 19 and 28 of the CRCSS, which are in line with Article 
3(1) of Directive 79/7. 

50 

 
 
 
 
 
 
 
 
 
 
Family  benefits  are  a  specific  subsystem  under  the  above-mentioned  ‘system  of  social 
citizenship  protection’  (Article  44  et  seq.  of  the  Social  Security  General  Law),  which  is 
regulated by specific legislation. The same applies to survivors’ pensions. 

7.5  Exclusions 

In Portugal, the general retirement age is the same for men and women, but it is fixed 
every year according to the so-called ‘sustainability factor’ established for that same year 
(presently, the retirement age is fixed at 66 years and 5 months). In some situations, the 
retirement age is lower, due to a number of criteria, such as career length or the profession 
or activities (Article 20 of Decree-Law No. 187/2007, of 10 Mai 2007). 

However, this is not a mandatory age, as it depends upon the worker’s intention to apply 
for retirement when he/she reaches the legal age and provided he/she meets the other 
requirements to have access to a pension (a minimum number of working years with paid 
contributions, for example). Only for public servants is there an age limit for continuing to 
work, which is fixed at  70 (Article 291 of  the  General Law for Civil Servants  – Law  No. 
35/2014, of 20 June 2014), but not even this age limit is absolutely binding.  

Also, except in public service, a claimant can receive an old-age pension while still working, 
if he/she so wishes and the employer agrees to it.  

In Portugal, the equalisation of the pensionable age for men and women was approved in 
1993. At the time, arguments were presented to the effect that the equalisation had only 
taken place for economic reasons. Also, the application of this new rule resulted in some 
problems during the transitory period, especially because there was an adjustment period 
to implement the new age limit, but the minimum period of contributions was also changed 
at  the  same  time  (from  a  minimum  of  10  years  of  work  with  paid  contributions  to  a 
minimum of 15 years) and the new rule on this minimum period had no transition period. 
However, since this transitory period came to an end quite some time ago, this rule no 
longer gives rise to any problems. 

In  Portugal,  maternity  leave,  paternity  leave,  parental  leave  and  other  special  types  of 
leave  for  care  purposes  are  credited  as  corresponding  with  professional  activity  for  the 
purposes of the formation of pension rights (Article 22 of Decree-Law No. 91/2009, of 9 
April 2009). Apart from these mechanisms, there are no  other crediting mechanisms in 
relation to the pensionable age for persons who have raised children or performed other 
care work within the family. 

7.6  Actuarial factors 

The  author  has  no  specific  information  on  the  topic  of  actuarial  factors  linked  to  social 
security benefits.  

Nevertheless,  due  to  the  gender  equality  principle  established  in  Article  7  of  the  Social 
Security General Law, actuarial rules used to determine the amount of the benefit cannot 
be discriminatory and must promote gender equality.  

7.7  Difficulties 

On  the  one  hand,  some  difficulties  in  this  area  arise  from  the  complexity  of  national 
legislation that makes it difficult to detect discriminatory situations.  

On the other hand, the Portuguese social security system has been subject to an overall 
reform for the past decade, mostly for reasons related to the economic sustainability of 

51 

 
 
 
 
 
 
 
 
 
 
 
 
the system itself.25 In this sense, new principles on the subject have been developed by 
the  law,  such  as  reinforcing  the  economic  strength  of  the  system  and  promoting  active 
ageing. 

In  the  pursuit  of  these  goals,  several  legal  measures  regarding  old-age  pensions  have 
been  approved  by  Decree-Law  No.  187/2007,  of  10  May  2007,  such  as  new  rules  to 
calculate the old-age pension, a maximum limit for this pension, a pension bonus for those 
who choose not to apply for their pension when they reach pension age and a reduction in 
the pension for those who apply for it before reaching that age because they comply with 
other alternative requirements (for instance, working for a certain number of years). More 
recently, a new set of measures was adopted in this area by Decree-Law No. 119/2018, 
of  27  December  2018,  which  have  repealed  some  of  the  more  constraining  measures 
imposed by the previous legislation, under the financial crisis. 

In a global overview, all these measures  seem to be gender neutral, but some of them 
can  in  fact  have  discriminatory  results  against  women.  The  best  example  of  these 
discriminatory effects is the present  rule regarding the formula to calculate the amount 
for old-age and invalidity pensions: unlike the previous rule, this rule takes into account 
not only the best ten years of the last fifteen years of contributions to the social security 
system, but all years of contributions, to calculate the value of the pension.26  

This  formula  may  have  a  disproportionate  effect  on  women’s  and  on  men’s  pensions, 
according to the salary gender gap, since this gap may be more relevant at different stages 
of the career. We have no information as to whether the gender factor was even taken 
into consideration when this measure was approved, but we cannot ignore this negative 
effect.  

In  the  author’s  opinion  and  on  the  whole,  the  reform  of  the  social  security  system  in 
Portugal  has  not  taken  into  consideration  the  fact  that  men  and  women  have  different 
working  patterns,  with  women  having  lower  participation  rates  in  the  formal  labour 
market, lower pay and  fragmented careers due to care activities. With the exception of 
leave  due  to  maternity  and  paternity  reasons,  which  is  taken  into  consideration  for  the 
purpose  of  building  up  pension  rights  as  indicated  above  (Article  22  of  Decree-Law  No. 
91/2009,  from  9  April  2009),  these  reforms  have  not  taken  into  account  the  issue  of 
gender equality. 

7.8  Evaluation of implementation 

In  the  area  of  statutory  social  security  benefits,  there  is  no  reason  to  say  that  the 
implementation of EU law in Portugal has not been done, but the lack of data in this field 
makes  it  impossible  to  evaluate  the  practical  result  of  the  implementation  of  gender 
equality principles in this area.  

At  another  level,  it  is  important  to  point  out  that  the  national  social  security  system  is 
largely built on the traditional model of employment and therefore is largely supported by 
the  contributions  of  both  the  employees  and  the  employers,  the  latter  being  the  major 
contributors to the system.  

This system is therefore not well equipped to face the challenges attached to other forms 
of work that do not fall under the traditional employment contract model, as is the case of 

25   One must take into consideration that the system has a universal scope – in the sense that every citizen 
has the right to social security protection – as well as a public nature, depending almost exclusively upon 
the National Budget for Social Security, which is part of the National Annual Budget. In this situation, the 
problem of the economic sustainability of the system is of major significance. 

26   This new formula to calculate the value of old-age pensions was introduced by Decree-Law No. 35/2005, 

from 19 February 2005, which changed Decree-Law No. 329/93, from 25 September 1993. The same rule 
is now established in Article 29 of Decree-Law No. 187/2007, from 10 May 2007. 

52 

 
 
 
 
 
 
 
 
                                                   
independent work and other forms of work, such as remote work, work in digital platforms, 
co-work or smart work. 

The questions related to the implementation of EU gender equality law as regards social 
security benefits may have to be addressed differently in these new models of work but 
this analysis is yet to be done. 

7.9  Remaining issues 

The author has nothing to add on this topic. 

53 

 
 
 
 
 
8 

Self-employed  workers  (Directive  2010/41/EU  and  some  relevant 
provisions of the Recast Directive) 

8.1  General (legal) context 

8.1.1  Surveys and reports on the specific difficulties of self-employed workers 

The author is not aware of specific surveys concerning gender equality in relation to self-
employment. 

8.1.2  Other issues 

The author has no specific information on this topic. 

8.1.3  Overview of national acts 

The  more  important  acts  with  relevance  to  gender  equality  in  self-employment  are  the 
following: 

- 

- 

- 

- 

Law No. 3/2011, of 15 February 2011, which establishes the general framework for 
the  protection  of  the  self-employed  as  regards  the  prohibition  of  discrimination  in 
the access to and in the development of independent work in the private sector, in 
the public sector, and in the cooperative sector.  
Law No. 110/2009, of 16 September 2009, which approved the ‘Código dos Regimes 
Contributivos do Sistema Previdencial de Segurança Social’ – CRCSS (‘Social Security 
Contribution System Code’), which includes some provisions regarding social security 
for  independent  workers,  including  assisting  spouses,  and  separate  provisions 
applicable to the members of company boards. 
The Labour Code (LC), which extensively regulates equality and non-discrimination 
in employment, which is important because these provisions are also applicable to 
the category of ‘quasi-subordinate’ workers (Article 10) and, under the new General 
Law for  Civil Servants,  also to workers  of the  public sector, including independent 
workers (Article 4(1)(c) and (d) of ‘Civil Servants General Law’ – Law No. 35/2014, 
of 20 June 2014). 
Law  No.  91/2009,  of  9  April  2009,  which  establishes  social  security  provisions 
attached  to  maternity  and  paternity  rights.  These  provisions  are  applicable  to 
subordinate workers in the private sector and in the public sector and to independent 
workers (Article 4(1)). 

8.1.4  Political and societal debate and pending legislative proposals 

To  the  author’s  knowledge  there  is  no  societal  or  political  debate  in  relation  to  gender 
equality in self-employment, and there are no pending legislative proposals in this area. 

8.2  Implementation of Directive 2010/41/EU 

Directive 2010/41 has not been formally transposed into Portuguese legislation, because 
national legislation was considered to already comply with the Directive. As indicated just 
above,  four  acts  are  to  be  taken  into  consideration  for  the  several  purposes  of  the 
Directive, in the field of employment and in the field of social security:  

- 

- 

Law No. 3/2011, of 15 February 2011, which establishes the general framework for 
the  protection  of  the  self-employed  as  regards  the  prohibition  of  discrimination  in 
the access to and in the development of independent work in the private sector, in 
the public sector, and in the cooperative sector.  
Law No. 110/2009, of 16 September 2009, which approved the ‘Código dos Regimes 
Contributivos do Sistema Previdencial de Segurança Social’ – CRCSS (‘Social Security 

54 

 
 
 
 
 
 
 
 
 
 
 
 
 
- 

- 

Contribution System Code’), which includes some provisions regarding social security 
for  independent  workers,  including  assisting  spouses,  and  separate  provisions 
applicable to the members of company boards. 
The Labour Code (LC), which extensively regulates equality and non-discrimination 
in employment, which is important because these provisions are also applicable to 
the category of ‘quasi-subordinate’ workers (Article 10) and, under the new General 
Law for  Civil Servants,  also to workers  of the  public sector, including independent 
workers  (Article  4(1)(c)  and  (d)  of  the  ‘Civil  Servants  General  Law’  –  Law  No. 
35/2014, of 20 June 2014). 
Law  No.  91/2009,  of  9  April  2009,  which  establishes  social  security  provisions 
attached  to  maternity  and  paternity  rights.  These  provisions  are  applicable  to 
subordinate workers in the private sector and in the public sector and to independent 
workers (Article 4(1)). 

8.3  Personal scope 

8.3.1  Scope 

The  scope  of  Portuguese  legislation  in  this  field  is  determined  by  the  notion  of  self-
employment.  However,  the  law  defines  self-employment  for  the  purposes  of  non-
discrimination provisions in the access to and in the development of self-employment in a 
slightly different way from self-employment for the purposes of social security rights. 

For  the  purposes  of  non-discrimination  in  the  access  to  and  in  the  development  of 
independent  work,  Law  No.  3/2011,  of  15  February  2011,  defines  independent  work  in 
accordance with Directive 2010/41/EU, in Article 2(2), as a professional activity developed 
outside an employment contract or a legally equivalent situation.  

This  concept  is  wide,  accommodating  very  different  situations,  such  as  traditionally 
independent  professions  (doctor,  attorney  at  law,  or  architect);  small  entrepreneurs; 
independent workers in agriculture, in commerce or in services; members of the boards 
of  companies;  workers  in  cooperatives;  etc.  However,  this  concept  does  not  explicitly 
mention assisting spouses. 

For the purposes of social security, the ‘Social Security Contribution System Code’ (CRCSS) 
defines an independent worker as a person performing a professional activity outside an 
employment  contract  or  a  legally  equivalent  situation,  or  a  person  performing  a 
professional  activity  for  another  person  without  being  integrated  in  the  social  security 
scheme applicable to subordinate workers (Article 132 of this Code).  

Following  this  general  definition,  this  Code  indicates  several  categories  of  independent 
workers (Articles 133 and 134), which include the following situations: persons pursuing 
a  gainful  activity  for  their  own  account;  business  partners;  persons  developing 
independent work in agriculture, including running a farm or operating a business in this 
area; small entrepreneurs; authors and artists. Other categories of independent workers 
also fall under the scope of the CRCSS, under specific social security schemes – this applies 
to  workers  in  the  cooperative  sector  (Article  135  of  the  CRCSS),  members  of  company 
boards  (Article  61  of  the  CRCSS),  and  ‘quasi-subordinate’  workers  (Article  71  of  the 
CRCSS).  

The  CRCSS  explicitly  mentions  the  category  of  assisting  spouses  or  life  partners  of 
independent workers, defining them as those who perform a regular and permanent (but 
not  necessarily  full-time)  professional  activity  with  their  partners  (Article  133(1)(c)). 
Under the category of independent workers for the purposes of social security, the Code 
also  mentions  independent  workers  in  agriculture  and  small  entrepreneurs  and  their 
spouses or life partners (Article 134(1)(a) and (b)).  

55 

 
 
 
 
 
 
 
 
 
As a general conclusion to this point, we would say that Portuguese legislation includes a 
wide  concept  of  self-employment,  but  this  concept,  and  therefore  the  scope  of  the 
applicable rules, are not the same for all purposes. Also, the category of assisting spouses 
or life partners is only explicitly recognised and covered for the purposes of social security 
provisions.  

8.3.2  Definitions 

As  indicated  above,  Portuguese  legislation  defines  self-employment  for  the  purposes  of 
non-discrimination provisions in the access to and in the development of self-employment 
and for the purposes of social security rights, but not in exactly the same sense. 

For  the  purposes  of  non-discrimination  in  the  access  to  and  in  the  development  of 
independent  work,  Law  No.  3/2011,  of  15  February  2011,  defines  independent  work  in 
accordance with Directive 2010/41/EU, in Article 2(2), as a professional activity developed 
outside an employment contract or a legally equivalent situation.  

For the purposes of social security, the Social Security Contribution System Code (CRCSS) 
defines an independent worker as a person performing a professional activity outside an 
employment  contract  or  a  legally  equivalent  situation,  or  a  person  performing  a 
professional  activity  for  another  person  without  being  integrated  in  the  social  security 
scheme applicable to subordinate workers (Article 132 of this Code).  
Under  this  definition,  and  as  indicated  above,  this  Code  indicates  several  categories  of 
independent workers. 

8.3.3  Categorisation and coverage 

For  the  purposes  of  non-discrimination  in  the  access  to  and  in  the  development  of 
independent work (Law No. 3/2011, of 15 February 2011), the notion of self-employment 
accommodates  very  different  situations,  such  as  traditionally  independent  professions 
(doctor,  attorney  at  law,  or  architect);  small  entrepreneurs;  independent  workers  in 
agriculture, in commerce or in services; members of the boards of companies; workers in 
cooperatives; etc. 

For the purposes of social security, the Social Security Contribution System Code (CRCSS) 
includes  in  the  definition  of  independent  worker,  or  treats  as  independent  workers,  the 
following professional categories: 

- 

- 
- 

- 

- 

persons pursuing a gainful activity for their own account, business partners, authors 
and artists (Articles 133 and 134 of this Code); 
small entrepreneurs (Articles 133 and 134 of this Code);  
persons  developing  independent  work  in  agriculture,  including  running  a  farm  or 
operating a business in this area (Article 134(1)(a) and (b) of this Code) 
specific  categories  of  independent  workers  under  specific  social  security  schemes, 
like  workers  in  the  cooperative  sector  (Article  135  of  this  Code),  members  of 
company boards (Article 61 of this Code), and ‘quasi-subordinate’ workers (Article 
71 of this Code); 
assisting spouses or life partners of independent workers, who are defined as those 
who  perform  a  regular  and  permanent  (but  not  necessarily  full-time)  professional 
activity with their partners (Article 133(1)(c) of this Code).  

8.3.4  Recognition of life partners 

As indicated above, the concept of self-employment is wide, so all categories are covered, 
including life partners. 

56 

 
 
 
 
 
 
 
 
 
 
 
8.4  Material scope 

8.4.1  Implementation of Article 4 of Directive 2010/41/EU 

As indicated above, Directive 2010/41 has not been formally transposed into Portuguese 
legislation,  because  national  legislation  was  considered  to  already  comply  with  the 
Directive.  

Although  Directive  2010/41  has  not  been  transposed  into  national  law,  the  principle  of 
equal treatment in independent work is established in national law. Article 3 and Article 
5(1) of Law No. 3/2011, of 15 February 2011, establish that no one can be subjected to 
different treatment in the access to and during the development of self-employment, due 
to a discriminatory ground.  

8.4.2  Material scope 

The  protection  against  discriminatory  practices  in  self-employment  includes  direct  and 
indirect  discrimination  and  discriminatory  harassment  (including  sexual  harassment) 
(Article 5(2), (3), (5) and (6) Law No. 3/2011, of 15 February 2011) and covers the access 
to self-employment (including advertisements, selection criteria and the affiliation of the 
worker to professional associations), and the development of independent work (including 
pay, access to vocational training and the conditions for the termination of the contract) 
– Article 3(2) and (3), and Article (4), specifically as regards equal pay. An instruction to 
discriminate is also qualified as discriminatory practice (Article 5(3)). 

The  main  differences  between  national  legislation  and  Article  4  of  Directive  2010/41 
concern two points.  

Firstly,  national  legislation  considers  all  grounds  of  discrimination  together,  so  sex 
discrimination is not treated separately.  

Secondly,  the  principle  of  non-discrimination  in  relation  to  self-employment  makes  no 
explicit reference to the launching or creation of a business or company by independent 
workers  (as  expressed  in  Article  4(1)  of  Directive  2010/41),  since  the  perspective  of 
national law is  more  focused  on  the  rights  of  the  independent  worker  in  relation  to  the 
counterparts  of  his/her  work  and  the  duties  of  the  counterpart  in  relation  to  the 
independent contractor. From this perspective, under national law, equality issues relating 
to the creation of a business would more likely be dealt with by Law No. 14/2008, of 12 
March  (which  transposed  Directive  2004/113),  for  instance,  to  deal  with  different 
conditions granted to a person in the access to financial credit to start a business or create 
a company. Apart from this issue, and to say the least, national legislation is not clear as 
to the extension of the protection to the creation of a company or the establishment of a 
new business.  

8.5  Positive action 

Positive action is not dealt with by Law No. 3/2011, of 15 February 2011, but is allowed 
by the Portuguese Constitution, especially in favour of women (since under Article 9(h) of 
the  Constitution,  the  active  promotion  of  gender  equality  is  a  fundamental  goal  of  the 
State), and by the Labour Code (Article 27).  

In practice, several positive action measures have been approved in the last years in the 
area of self-employment, especially in the area of the participation of women in decision-
making, by legally imposing a women’s quota  on the boards of companies in the public 
sector and in private companies subjected to public regulation (Law No. 67/2013, of 28 

57 

 
 
 
 
 
 
 
 
 
 
 
August 2013, Article 17(8)),27 and finally by imposing a minimum representation of the 
under-represented sex on executive boards and surveillance boards of public companies 
and of private listed companies (Law No. 62/2017, of 1 August 2017), as already indicated. 
In the view of the author, this kind of positive action is necessary and quite effective. 

8.6  Social protection 

Social  protection  for  the  self-employed  is  granted  by  the  Social  Security  Contribution 
System Code (CRCSS) but the legal framework is complex.  

It is also important to say that the provisions of the CRCSS in this field were amended by 
Decree-Law  No.  2/2018,  of  9  January  2018.  However,  in  2018,  the  old  rules  are  still 
applicable, since this piece of legislation entered into force only on 1 January 2019. In this 
context, the analysis below is still reported according to the ‘old’ rules, as they are in force 
during the period covered by this report, and we will only add some references to the new 
provisions in footnotes when appropriate. 

Most  categories  of  self-employed  persons  are  covered  by  the  social  security  scheme  of 
independent  workers  (Articles  132  et  seq.  of  the  CRCSS).  Some  categories  can  choose 
their social security system – this is the case for workers in the cooperative sector, since 
the by-laws of the cooperative can choose to place their workers under the social security 
provisions  applicable  to  subordinate  workers  or  under  the  social  security  provisions 
applicable  to  the  self-employed  (Article  135  of  the  CRCSS).  Other  categories  of 
independent  workers  are  subjected  to  the  general  social  security  scheme  applicable  to 
subordinate workers, with some specificities, as in the case of the members of company 
boards (Article 61 of the CRCSS), and in the case of ‘quasi-subordinate’ workers (Article 
71  of  the  CRCSS).  Finally,  independent  workers  who  perform  at  least  80 %28  of  their 
activity for a sole beneficiary fall under a specific provision (Article 140 of the CRCSS).  

The  major  differences  in  the  social  security  protection  granted  under  these  various 
schemes concern the amount and the responsibility for the payment of contributions and 
the  social  benefits  attached  to  each  scheme.  In  the  general  social  security  scheme 
applicable  to  subordinate  workers,  both  the  employer  and  the  employee  pay  the 
contributions to the public social security system at different rates that are much higher 
for the employer than for the employee (Article 53 of the CRCSS). As regards independent 
workers, only the worker pays the contribution, at a rate that he/she can choose and which 
is determined on the basis of his median income and variable according to the category of 
the independent worker (Article 168)29 – for instance, small entrepreneurs contribute at a 
higher  rate  than  independent  workers  in  agriculture.30  As  regards  ‘quasi-subordinate’ 
workers, there is a contribution by both contractors but at a lower rate than the rate of 
the  contribution  in  the  general  system  for  subordinate  workers  and  their  employers. 
Finally, the beneficiary of 80 % or more of the activity of an independent worker is also 
charged a small contribution to the social security system, despite the qualification of the 
worker as an independent worker (Article 168 of the CRCSS).31  

27   As regards this particular point it is important to take into consideration that due to the wide notion of self-
employed persons under national legislation, board members are to be qualified as a specific category of 
independent workers, since they are not engaged under an employment contract. 

28   In 2019, this percentage will change to 50 % under the amendment to Article 140(1) of the CRCSS, 

introduced by Decree-Law No. 2/2018, of 9 January 2018. 

29   In 2019, these rules will change under the amendment to Article 168 of the CRCSS, introduced by Decree-
Law No. 2/2018, of 9 January 2018, that, among other changes, does not allow the independent worker to 
choose the low-level contribution model.  

30   In 2019, the percentage of these contributions will change to a fixed-value of 21.4 % (general rule) and 

25 % for small entrepreneurs, under the amendment to Article 168(1) of the CRCSS, introduced by Decree-
Law No. 2/2018, of 9 January 2018. 

31   In 2019, this percentage will change to 7 % or 10 % under the amendment to Article 168(7) of the CRCSS, 

introduced by Decree-Law No. 2/2018, of 9 January 2018. 

58 

 
 
 
 
 
 
                                                   
As to the social security benefits attached to this system, the major difference lies in the 
fact  that,  unlike  subordinate  workers,  independent  workers  are  not  protected  against 
involuntary  unemployment.  However,  social  benefits  attached  to  sickness,  including 
professional illnesses, invalidity and old-age pensions, survival pension, and maternity and 
paternity  are  granted  (Article  141  of  the  CRCSS).  Healthcare  is  granted  to  all  persons 
under the National Health Care System. 

In general, these schemes are mandatory.  

Assisting spouses and life partners of independent workers are included in the scheme of 
their  partner  (Article  133(1)(c)  and  Article  134(1)(a)  and  (b)  of  the  CRCSS),  on  a 
mandatory basis. 

8.7  Maternity benefits 

National legislation grants maternity and paternity benefits to independent workers – not 
exactly by according the right to maternity or paternity leave (since they do not have an 
employer  as  such)  but  by  granting  the  right  to  social  security  allowances  related  to 
maternity, paternity and parental leave. These issues are dealt with by Law No. 91/2009, 
of 9 April 2009, in the same way for subordinate workers and for self-employed persons. 

The amount of maternity allowance is calculated on the same basis for subordinate and 
independent workers, by taking into account the salary/average income of the worker and 
corresponding to an average of 100 % of the average income of the worker – in this sense, 
the amount of the allowance is in accordance with the requirements of Article 8(3) of the 
Directive. Since the social security scheme of those workers is mandatory, the allowance 
is also granted on a mandatory basis. 

The problem regarding this allowance comes from the fact that Portugal has not formally 
transposed Directive 2010/41. In fact, Article 40(b) of Law No. 91/2009, of 9 April 2009, 
grants  self-employed  persons  the  right  to  maternity,  paternity  or  parental  allowances 
‘during the period in which the worker remains unfit to work’ and Article 42 states that the 
allowance is incompatible with professional activity – in other words, as regards maternity, 
the minimum period of 14 weeks of time off, established by Article 8(1) of the Directive, 
is not imposed or even specifically addressed by national law.  

Under  these  circumstances,  but  also  given  the  fact  that  self-employment  is  seldom 
compatible with long absences from work, independent workers tend to take advantage 
of  the  time  off  and  of  the  corresponding  allowances  for  much  shorter  periods  than 
subordinate workers.  

There are no specific provisions concerning assisting spouses or life partners in respect of 
time off on the grounds of maternity and inherent allowances. 

8.8  Occupational social security 

8.8.1  Implementation of provisions regarding occupational social security 

National legislation implementing EU non-discrimination provisions on occupational social 
security  schemes  (Decree-Law  No.  307/97,  of  11  November  1997)  is  also  applicable  to 
self-employed persons (Article 3 of this Law). 

Therefore, all considerations set out above under Point 6 also apply here. 

59 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
8.8.2  Application  of  exceptions  for  self-employed  persons  regarding  matters  of 

occupational social security (Article 11 of Recast Directive 2006/54) 

Article  5  of  Decree-Law  No.  307/97,  of  11  November  1997  (which  deals  with  gender 
equality in occupational social security, as indicated above) uses the exceptions for self-
employed persons regarding matters of occupational social security mentioned in Article 
11 of Recast Directive 2006/54. 

8.9  Prohibition of discrimination 

Article  14(1)(a)  of  Recast  Directive  2006/54  is  implemented  in  national  law  as  regards 
self-employment, by Article 3(1), (2) and (3) of Law No. 3/2011, of 15 February 2011.  

Non-discrimination in this area is directly related to equal opportunities, which must be 
granted  in  the  access  to  independent  work  (including  advertisements,  selection  criteria 
and the affiliation of the worker to professional associations), in professional training, and 
in the conditions in which the work is performed (including pay and the conditions for the 
termination of the contract) – Article 3(2) and (3), and Article 4, specifically as regards 
equal pay, of Law No. 3/2011, of 15 February 2011. 

Any practice that favours or causes damage to these workers, performed by the beneficiary 
of  the  work  and  based  on  any  discriminatory  factor,  is  prohibited,  including  direct  and 
indirect  discriminatory  practices  and  harassment  practices  (Articles  3  and  5  of  Law  No. 
3/2011, of 15 February 2011). 

These  principles  are  compatible  with  specific  legal  regulations  concerning  protection 
against  discrimination  of  foreigners,  which  fall  under  the  scope  of  Directive  96/71.  In 
addition, the principles are also compatible with the regulations concerning the protection 
of  pregnancy,  maternity  and  paternity,  adoption  and  other  situations  related  to  the 
reconciliation of professional and family life. 

8.10 Evaluation of implementation 

In the author’s view, EU law in this field was adequately implemented at national level, 
with the exception of the right to maternity leave, which, as indicated above, is in practice 
not enjoyed (or is enjoyed for much shorter periods) by independent workers. 

8.11 Remaining issues 

The author has nothing to add in relation to this topic. 

60 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
9 

Goods and services (Directive 2004/113)32 

9.1  General (legal) context 

9.1.1  Surveys and reports about the difficulties linked to equal access to and supply of 

goods and services 

To the author’s knowledge, no surveys and/or reports have been published over the last 
five  years  to  provide  insight  into  the  difficulties  men  and  women  may  face  in  terms  of 
equal access to and supply of goods and services. 

9.1.2  Specific  problems  of  discrimination 

in 

the  online  environment/digital 

market/collaborative economy 

Aside  from  the  common  information,  made  by  algorithms,  which  indicates  that  the 
evaluation of work and the access to a job in digital platforms is not gender-neutral, the 
author  has  no  means  to  identify  specific  problems  of  discrimination  in  the  online 
environment or in the digital market. 

9.1.3  Political and societal debate 

The author is not aware of any political and/or societal debate on this topic, in Portugal. 

9.2  Prohibition of direct and indirect discrimination 

Directive 2004/113 has been transposed into national legislation by Law No. 14/2008, of 
12 March 2008, which was later changed by Law No. 9/2015, of 11 February 2015, in view 
of the Test-Achats judgment. 

Articles 1 and 4 of Law No. 14/2008 explicitly prohibit direct and indirect sex discrimination 
in the access to and supply of goods and services.  

9.3  Material scope 

The  material  scope  of  national legislation  in  this  area  is  defined  in  Article  2  of  Law  No. 
14/2008,  of  12  March  2008,  which  is  completely  in  line  with  Article  3  of  Directive 
2004/113.  

9.4  Exceptions 

The  exact  same  exceptions  to  the  material  scope  of  Directive  2004/113  have  been 
established in Article 2(2)(b) and (c) of Law No. 14/2008, of 12 March 2008. 

9.5  Justification of differences in treatment 

Article 4(5) of the Directive has not been transposed as such into national legislation. 

Only  where  insurance  and  financial  contracts  are  concerned,  and  more  specifically  with 
regards to actuarial factors (Article 6 of Law No. 14/2008), the law allowed differences in 
individual obligations and prizes regarding these contracts, provided that they were based 
on objective and proportional criteria, which had to be confirmed by actuarial data certified 
by the ‘Instituto de Seguros de Portugal’ (‘Portuguese Insurance Institute’) and should be 
reviewed  every  five  years  (Article  6(2),  (3)  and  (4)).  However,  in  the  amendment 
introduced to Law No. 14/2008 by Law No. 9/2015, of 11 February 2015, in view of the 

32   See e.g. Caracciolo di Torella, E. and McLellan, B. (2018), Gender equality and the collaborative economy, 

European network of legal experts in gender equality and non-discrimination, available at 
https://www.equalitylaw.eu/downloads/4573-gender-equality-and-the-collaborative-economy-pdf-721-kb. 

61 

 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
                                                   
Test-Achats  judgment,  Article  6(2),  (3)  and  (4)  were  eliminated,  so  there  are  no 
differences in treatment at national level to be reported. 

9.6  Actuarial factors 

Article 6(1) of Law No. 14/2008, of 12 March 2008, includes the exact same provision of 
Article 5(1) of Directive 2094/113, ensuring that the use of sex as a factor in the calculation 
of premiums and benefits for the purposes of insurance and related financial services shall 
not result in differences in individuals' premiums and benefits. 

9.7  Interpretation of exception contained in Article 5(2) of Directive 2004/113 

As regards the exception of Article 5(2) of Directive 2004/113, as indicated above, where 
insurance  and  financial  contracts  are  concerned,  and  more  specifically  with  regards  to 
actuarial factors (Article 6 of Law No. 14/2008), Law No. 14/2008 allowed differences in 
individual obligations and prices regarding these contracts, on the condition that they were 
based on objective and proportional criteria, which had to be confirmed by actuarial data 
certified by the Portuguese Insurance Institute and should be reviewed every five years 
(Article 6(2), (3), and (4)).  

However,  in  the  amendment  introduced  to  Law  No.  14/2008  by  Law  No.  9/2015,  of  11 
February  2015,  in  view  of  the  Test-Achats  judgment,  Article  6(2),  (3)  and  (4)  were 
eliminated.  

9.8  Positive action measures (Article 6 of Directive 2004/113) 

Article 4(7) of Law 14/2008, of 12 March 2008, is equivalent to Article 6 of the Directive 
in the sense of allowing positive action in this area.  

However, the Law does not indicate concrete situations in which positive action may be 
taken, and to date, the author has no knowledge of any positive action taken in the scope 
of this rule. 

9.9  Specific problems related to pregnancy, maternity or parenthood 

Law No. 14/2008, of 12 March 2008, provides specific protection for pregnant women, for 
women  who  have  recently  given  birth  and  for  women  who  are  breastfeeding,  in  Article 
4(6) (in line with Article 4(2) of the Directive), in Article 7 (which corresponds to Article 
5(3) of the Directive) and in Article 5. This last provision, which goes beyond the Directive, 
explicitly  prohibits  any  request  of  information  from  a  woman  requiring  access  to  goods 
and services concerning her possible state of pregnancy, except for reasons related to the 
protection of her own health. 

However,  Law  No.  14/2008  includes  no  specific  definition  of  pregnancy  or  maternity 
discrimination. As a matter of fact, in this respect, national legislation is not as clear as 
the  Directive  as  to  what  concerns  the  formal  qualification  of  maternity  and  pregnancy 
discrimination as direct discriminatory practices, since the provisions of Article 4(1)(a) of 
the Directive (which establish this relationship very clearly) have not been transposed with 
the exact same content into the corresponding national provision (Article 4(1) of Law No. 
14/2008).  

This being the case, one must conclude that this specific Portuguese legislation relies on 
the  general  prohibition  of  sex  discrimination  established  in  other  national  legislation 
(where  the  formal  qualification  of  pregnancy/maternity  discrimination  as  gender 
discrimination is established) for the purpose of this provision.  

62 

 
 
 
 
 
 
 
 
 
 
 
 
 
In this context, and even considering the other provisions of this legislation regarding the 
protection of pregnant women or women on maternity leave (Article 4(6), Article 5 and 
Article 7), in the author’s view, this issue should have been addressed more clearly in this 
law, mainly in the form of a general qualification provision, as included in the Directive. 
The lack of this provision may even create the wrong impression that these women are 
only  to  be  considered  as  discriminated  against  when  treated  differently  in  the  areas 
specifically covered by these provisions (information regarding pregnancy and clauses of 
insurance and financial contracts). 

In the author’s opinion, discrimination in relation to pregnancy and maternity in the goods 
and  services  context  takes  place  mainly  in  the  access  to  health  services  attached  to 
insurance contracts, given the widespread practice of establishing an initial period during 
which the contract has no effect and this period may cover pregnancy time. 

9.10 Evaluation of implementation 

In the author’s view, EU law in this field was adequately implemented at national level. 

9.11 Remaining issues 

The author has nothing to add in relation to this topic. 

63 

 
 
 
 
 
 
 
10  Violence  against  women  and domestic violence  in  relation to  the Istanbul 

Convention 

10.1 General (legal) context 

10.1.1 Surveys and reports on issues of violence against women and domestic violence 

Violence  against  women  and  domestic  violence  is  a  matter  of  great  concern  to  the 
Portuguese authorities, given the number of situations reported every year. The author is 
not aware of specific surveys in this area but it is certainly a subject that is being closely 
watched in recent years in our country. 

On a regular basis, the Comissão para a Cidadania e Igualdade de Género – CIG (Agency 
for Citizenship and Gender Equality) publishes surveys and studies on these topics. In the 
paper ‘Prevenção e Combate à Violência contra as mulheres e violência doméstica – 2018’ 
(‘Prevention of and Action on Violence Against Women and Domestic Violence – 2018’),33 
published by the CIG, it is possible to find the latest numbers on the crimes in these areas 
in  the  year  of  2018,  but  also  relevant  data  on  the  protective  actions  and  protective 
networks that are in place in this area in Portugal.  

10.1.2 Overview of national acts on violence against women, domestic violence and issues 

related to the Istanbul Convention 

In this field, the following acts are worth mentioning: 

- 

- 

- 

- 
- 

- 

Parliament Resolution No. 4/2013, of 14 December 2012, and President Decree No. 
13/2013, both published in the Official Journal (Diário da República) of 21 January 
2013, approving and ratifying the Istanbul Convention; 
Criminal Code, as regards most crimes against women indicated in the IC, although 
in some cases under a different name;  
Civil Code, as regards non-consensual marriage and attacks on personal rights, such 
as the right to physical or moral integrity and the right to privacy;  
Labour Code, as regards discriminatory and sexual harassment;  
Specifically on the topic of domestic violence, Law No. 112/2009, of 16 September 
2009, which establishes the legal  framework regarding domestic violence, already 
amended  by  Law  No.  129/2015,  of  3  September  2015;  Law  No.  104/2009,  of  14 
September (right to damage compensation for the victims of domestic violence), and 
Law No. 107/2009, of 3 August 2009, Decree-Law No. 107/99, of 19 December 2009, 
and  Act  No.  1/2006,  of  25  January  2006  (shelter  homes  for  female  victims  of 
domestic  violence),  and  the  National  Plans  for  the  Prevention  and  Combat  of 
Domestic Violence.  
The  National  Plans  for  Gender  Equality,  that  also  deal  with  the  issue  of  violence 
against women.  

10.1.3 National provisions on online violence and online harassment 

The  author  is  not  aware  of  specific  provisions  related  to  online  violence  and  online 
harassment.  However,  the  legislation  indicated  above  does  not  exclude  the  online 
environment of such practices, in their one specific context.  

33   This study, on domestic violence, is available at https://www.cig.gov.pt/wp-

content/uploads/2018/11/AF_CIG_ViolDomestica_A4.pdf.  

64 

 
 
 
 
 
 
 
 
 
 
 
                                                   
10.1.4 Political and societal debate 

Violence  against  women  and  domestic  violence  is  a  matter  of  great  concern  to  the 
Portuguese  authorities,  given  the  number  of  situations  reported  every  year,  so  societal 
and political debate on these issues is quite frequent, and these issues draw the attention 
of the media quite regularly. In short, there is a great awareness of this subject at several 
levels.   

10.2 Ratification of the Istanbul Convention 

Portugal has approved and ratified the Istanbul Convention (IC), by Parliament Resolution 
No. 4/2013, of 14 December 2012, and President Decree No. 13/2013, both published in 
the Official Journal (Diário da República) of 21 January 2013. Portugal was in fact the first 
country of the EU to ratify the IC, and the ratification was made without any reservations. 

In general, before the accession of Portugal to the IC, the topics of the Convention were 
already covered by national legislation, as mentioned above, in several areas: the Criminal 
Code (as regards most crimes against women, indicated in the IC, although in some cases 
under a different name); the Civil Code (as regards non-consensual marriage and attacks 
on personal rights, such as the right to physical or moral integrity and the right to privacy); 
the Labour Code (as regards discriminatory and sexual harassment); and more specifically 
in  respect  to  domestic  violence,  Law  No.  112/2009,  of  16  September  2009,  which 
establishes the legal framework regarding domestic violence and other specific legislation 
on  the  same  topic,  such  as  Law  No.  104/2009,  of  14  September  (right  to  damage 
compensation for the victims of domestic violence), and Law No. 107/2009, of 3 August 
2009, Decree-Law No. 107/99, of 19 December 2009, and Act No. 1/2006, of 25 January 
2006 (shelter homes for female victims of domestic violence). The issue of violence against 
women is also taken into consideration at a domestic level by the National Plans for Gender 
Equality and the National Plans for the Prevention and Combat of Domestic Violence. 

In the author’s view, the national legal framework complies with the obligations under the 
Convention.  

Since  the  accession,  some  amendments  to  the  Criminal  Code  have  been  introduced, 
following several proposals that have been presented to Parliament regarding some of the 
issues covered by the IC. Law No. 83/2015, of 5 August 2015 has changed the Criminal 
Code by introducing, as autonomous crimes, the crime of genital mutilation34 (Mutilação 
genital feminina – Article 144-A of the Criminal Code), the crime of stalking (Perseguição 
– Article 154-A) and the crime of forced marriage (Casamento forçado – Article 154-B).  

Finally, Law No. 112/2009, of 16 September 2009, on domestic violence, was amended 
by  Law  No.  129/2015  of  3  September  2015,  in  the  sense  of  making  the  administrative 
response to domestic violence more efficient and also specifically directed at preventing 
homicide in this context.  

34   Previously this offence fell under the scope of the crime of ‘Serious offence to physical integrity’ (‘Ofensa à 

integridade física grave’) as in Article 144(1)(a) of the Criminal Code. 

65 

 
 
 
 
 
 
 
 
 
 
                                                   
11  Compliance  and  enforcement  aspects  (horizontal  provisions  of  all 

directives)  

11.1 General (legal) context 

11.1.1 Surveys  and  reports  about  the  particular  difficulties  related  to  obtaining  legal 

redress 

The author has no information regarding this topic.  

11.1.2 Other issues related to the pursuit of a discrimination claim 

The author has no information regarding this topic.  

11.1.3 Political and societal debate and pending legislative proposals 

The author has no information regarding this topic.  

11.2 Victimisation 

There is no explicit reference to the topic of victimisation in relation to discrimination in 
the Portuguese legal system.  

However, in the area of employment, it is strictly forbidden for the employer to oppose in 
any  way  the  exercise  of  the  employee’s  rights  and  to  react  to  such  exercise  with  any 
sanction,  dismissal  or  less  favourable  treatment  of  the  worker.  This  strict  prohibition  is 
established in Article 129(1)(a) of the LC and includes the prohibition of victimisation on 
the grounds of applying for or exercising gender equality rights. 

11.3 Access to courts 

11.3.1 Difficulties and barriers related to access to courts  

In Portugal, alleged victims of discrimination practices have free access to the courts. 

In the field of employment, individual complaints can be brought directly before the courts 
(Labour Court for private employees, and Administrative Court for public employees) by 
the victim’s lawyer.  

The  alleged  victims  also  have  the  right  to  seek  counsel  and  to  report  discriminatory 
practices to the legal authorities in this area: the Autoridade para as Condições de Trabalho 
(ACT) (‘Labour Inspection Services) and the Comissão para a Igualdade no Trabalho e no 
Emprego (CITE) (‘Gender Equality Agency in the Field of Employment’). 

At  another  level,  in  accordance  with  the  Labour  Code  (Article  443(1)(d)),  and,  more 
generally,  in  accordance  with  the  principles  of  civil  procedural  legislation  (Labour 
Procedural  Code,  Article  31),  class  actions  are  possible  to  defend  collective  interests. 
Therefore, in the field of discrimination in employment relations, these actions are allowed 
in all cases where a collective interest regarding the promotion of equality is recognised in 
the  entity  that  initiates  the  proceedings.  Also,  collective  representatives  of  a  victim  of 
discrimination (e.g. trade unions) can promote judicial actions on the  victim’s behalf or 
assist the victim in those actions.  

66 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Despite this general picture, judicial proceedings regarding gender discriminatory practices 
in Portugal are quite rare.35 In contrast, as regards employment, the number of situations 
where  the  CITE  acts  in  this  area  (since  this  Commission  must  give  advice  on  several 
matters related to gender equality, such as the dismissal of pregnant women, the refusal 
to  give  access  to  part-time  work  or  the  non-renewal  of  a  fixed-term  job  for  childcare 
reasons) is well documented36 and can amount to dozens of written advisory reports per 
year, in addition to support and counselling activities for discriminated workers.  

The difference between the reduced number of actions brought before the courts and the 
intense work of the CITE gives ground to the conclusion that the practical implementation 
of gender equality provisions is still difficult and the more effective action in view of this 
practical implementation in fact takes place outside the courts.  

In relation to self-employment and to the access to and supply of goods and services, the 
access  to  courts  is  also  available  with  no  restrictions,  both  to  the  alleged  victim  and  to 
collective  bodies.  In  this  last  sense,  the  law  establishes  the  rights  and  competences  of 
other  private  and  public  organisations  to  assist  victims  of  discrimination,  including  the 
right to intervene in judicial proceedings in the field of self-employment (Law No. 3/2011, 
of 15 February 2011, Articles 1 and 8) and as regards gender equality in the access to and 
supply of goods and services (Article 11 of Law No. 14/2008, of 12 March 2008). 

11.3.2 Availability of legal aid 

In relation to judicial proceedings, in the case of economic difficulties, the person has the 
right  to  a  public  lawyer  for  this  purpose  and  does  not  have  to  pay  the  costs  of  the 
proceedings. 

Apart from judicial proceedings, the alleged victims also have the  right to  seek counsel 
and to report discriminatory practices to the legal authorities in this area: the Autoridade 
para as Condições de Trabalho (ACT) – ‘Labour Inspection Services’), and the Comissão 
para a Igualdade no Trabalho e no Emprego (CITE) (‘Gender Equality Agency in the Field 
of Employment’).  

Outside the area of employment, victims of discrimination can ask for legal support from 
the  Comissão  para  a  Cidadania  e  Igualdade  de  Género  (CIG)  (‘Commission  for  Equality 
and Citizenship’).  

11.4 Horizontal effect of the applicable law 

11.4.1 Horizontal effect of relevant gender equality law 

Gender equality law in Portugal has a horizontal effect in the sense that the provisions can 
be  invoked  in  private  relations  and  directly  against  the  other  party,  because  the  legal 
provisions  in  this  field  are  written  in  acts  that  are  directly  applicable  to  private  parties, 
such  as  the  Labour  Code,  the  Civil  Code,  or  in  more  specific  legislation  in  the  area  of 
gender  equality,  including  ‘domestic’  legislation  per  se  and  legislation  ratifying 
international  treaties,  or  transposing  EU  directives,  that  become  ipso  jure  part  of  the 
national legislative system.   

Even some provisions in the area of gender equality, which are indicated and qualified as 
fundamental rights by the Constitution, have horizontal effect, in the sense that they are 
immediately binding provisions and can therefore also be invoked between private parties 
(Article 18(2) of the PC). The non-discrimination principle (including on the ground of sex), 

35   A complete overview of case law in this area can be traced at M. P. SÁ FERNANDES / R. A. MARTINS DA 

ROCHA / M. CERQUEIRA (2006), 22 Anos de Jurisprudência portuguesa sobre Igualdade Laboral em razão 
do Sexo (1979-2001), Lisboa, CITE, 2006 (this book is also available in www.cite.gov.pt). 

36   www.cite.gov.pt. (Pareceres) 

67 

 
 
 
 
 
 
 
 
 
 
                                                   
the equality principle in the access to employment, or the equal pay principle, are good 
examples of provisions that can be directly invoked between private parties.  

In fact, only the so-called ‘programmatic’ provisions (i.e., provisions directed at the State) 
and the non-binding principles written in international treaties, in EU law, or at national 
level, programmatic provisions written in the Portuguese Constitution or legislation, have 
no horizontal effect under the Portuguese system. 

11.4.2 Impact of horizontal direct effects of the charter after Bauer 

The  CFREU  is  often  quoted  and  called-upon  at  national  level,  including  by  the  Courts. 
However, the question of the horizontal direct effect of the provisions of the Charter  as 
regards  gender  equality  at  national  level  does  not  arise  because  the  national  legal 
provisions in this field already cover the topics dealt with by the Charter.  

11.5 Burden of proof 

National legislation provides for a shift of the burden of proof in sex discrimination cases 
in  the  areas  of  employment,  self-employment  and  access  to  and  supply  of  goods  and 
services. 

In the field of employment, the provisions on the burden of proof have been transposed 
into national legislation by the Labour Code (LC, Article 25(5) and (6)), which applies the 
rule  of  the  shift  of  the  burden  of  proof  to  all  actions  regarding  discriminatory  practices 
(gender included), maternity, paternity and reconciliation of work and family life, with the 
exception of actions based on harassment practices. 

In relation to gender equality in the access to and supply of goods and services, the shift 
of the burden  of proof in sex discrimination cases is  established in Article 9 of  Law No. 
14/2008, of 12 March 2008, in accordance with EU law. 

In the field of self-employment, the shift of the burden of proof is established in Article 7 
of Law No. 3/2011, of 15 February 2011. 

The  national  provisions  on  the  burden  of  proof  comply  with  EU  law,  with  the  possible 
exception of actions related to discriminatory harassment, where the shift of the burden 
of proof is not explicitly established by the Labour Code. 

11.6 Remedies and sanctions  

11.6.1 Types of remedies and sanctions 

National law establishes different types of  sanctions for breaches  of  EU gender equality 
law, depending on the type and context of the breach. Since the criteria for the application 
of  the  sanctions  differ  according  to  the  nature  of  the  breach  and  the  type  of  liability 
involved, the sanctions are not interrelated and the same breach can give ground to the 
application of more than one sanction. 

When a breach of equality law involves a crime, a criminal sanction is applicable, under 
the Criminal Code. 

When a breach of equality law causes economic or moral damage to the victim, damage 
compensation  is  applicable  under  the  Civil  Code  (Article  483)  and  in  the  field  of 
employment, also under the Labour Code (Article 28). 

In the field of employment, a breach of  equality provisions can also give ground to the 
application of administrative fines by the Autoridade para as Condições de Trabalho – ACT 

68 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
(‘Labour Inspection Services’). If a breach of equality law in employment relations results 
in  dismissal,  the  dismissal  is  unlawful  and  therefore  null  and  void,  giving  right  to 
reinstatement  or  to  damage  compensation,  as  the  worker  chooses  (Article  63,  Article 
381(b) and (d) and Article 391 LC). 

A specific sanction for the breach of gender equality provisions in collective agreements is 
the  remedy  established  in  Article  26  of  the  LC:  whenever  a  collective  agreement  or  a 
company  regulation  restricts  a  certain  type  of  remuneration  or  a  certain  professional 
category  or  activity  only  to  men  or  to  women,  these  stipulations  are  considered 
automatically applicable to employees of both sexes, provided they perform equal work or 
work  of  the  same  value.  This  provision  can  be  very  effective  to  promote  the  practical 
implementation of equal pay and equal treatment in the course of the employment, due 
to the immediate effect of this remedy, and goes beyond EU law. 

A specific sanction has been established concerning the breach of maternity rights: under 
Law No. 133/2015, of 7 September 2015, companies convicted by the Court for having 
illegally dismissed pregnant workers, recent mothers or workers who were breastfeeding, 
cannot benefit from public allowances or public financial benefits of any kind for a period 
of two years after the court’s judgment.  

Finally, in relation to harassment practices in employment relations, Law No. 73/2017, of 
16  August  2017,  has  reinforced  the  protection  of  harassment  victims  by  granting  them 
accrued  rights  to  damage  compensation,  by  imposing  upon  the  employer  the  duty  to 
approve a Code of Conduct in relation to harassment practices in the company as well as 
the  duty  to  start  a  disciplinary  procedure  against  harassment  perpetrators,  and  by 
extending  the  protection  against  dismissal  to  witnesses  of  harassment  practices  who 
denounce such practices (Article 29(4), (5) and (6) and Article 127(1)(k) and (l)).  

11.6.2 Effectiveness, proportionality and dissuasiveness 

In  the  author’s  view,  the  remedies  and  sanctions  established  in  national  legislation  are 
effective, proportional and dissuasive.  

11.7 Equality body  

In  Portugal  two  official  bodies  deal  with  gender  discrimination:  the  Comissão  para  a 
Igualdade  no  Trabalho  e  no  Emprego  –  CITE  (‘Gender  Equality  Agency  in  the  Field  of 
Employment’); and the Comissão para a Cidadania e Igualdade de Género – CIG (‘Agency 
for Gender Equality and Citizenship’).  

In addition, there are the Labour  Inspection Services (Autoridade para as Condições de 
Trabalho  –  ACT),  which  have  inspection  powers  over  employers’  activities  and 
organisations  and  are  competent  to  apply  administrative  fines  in  matters  related  to 
employment.  

A.  Gender Equality Agency in the Field of Employment (CITE) 

The CITE (www.cite.gov.pt) was created prior to the accession of Portugal to the European 
Union, by the Equality Act of 1979 (Decree-Law No. 392/79, of 20 September, Articles 14 
and 15), which at the time was the general law regarding gender equality in the field of 
employment. Now, the by-laws of the CITE are established in Decree-Law No. 76/2012, 
of 26 March 2012. 

As  to  the  nature  of  this  body,  the  CITE  is  a  public  body  that  depends  directly  on  the 
Government  and  is  financed  by  a  public  institution  (Instituto  do  Emprego  e  Formação 
Profissional  –  ‘Institute  for  Employment  and  Professional  Training’).  Despite  its  public 
nature, the CITE has the nature of a tripartite organisation, since it integrates members 

69 

 
 
 
 
 
 
 
 
 
 
 
appointed  by  the  Government,  but  also  members  appointed  by  the  major  unions  and 
members  appointed  by  the  major  employer’s  organisations  (e.g.  representatives  of  the 
main social partners).  

This  composition  and  the  financing  model  give  ground  to  the  conclusion  that  the  CITE 
cannot  be  considered  as  a  completely  independent  board.  However,  it  has  some 
independency  in  its  actions,  given  the  fact  that  non-governmental  organisations  are 
represented at the Agency and, in fact, the decisions of this Agency are approved by voting 
in a council that includes the non-governmental organisations.  

The  general  purpose  of  the  CITE  (described  in  Articles  2  et  seq.  of  Decree-Law  No. 
76/2012, of 26 March  2012) is the promotion of gender  equality in employment and in 
vocational training, to reinforce the protection of maternity and paternity and to promote 
the reconciliation of family and working life. This Agency deals both with the private and 
the public sector.  

To achieve this purpose, the CITE has the following competences: promotional activities, 
e.g.  awareness  raising,  and  dissemination  of  information  in  these  areas;  analysis  and 
monitoring,  e.g.  conducting  or  commissioning  research  and  surveys,  publishing  reports 
and making legal recommendations to the Ministers in charge of employment and of civil 
servants in order to improve legislation in the areas indicated above; giving an opinion in 
several matters regarding gender equality, like dismissal of pregnant workers or workers 
on maternity, paternity or parental leave, part-time work for family reasons, and fixed-
term contracts (in these cases employers are obliged to ask the opinion of the CITE before 
taking the measure, and a negative opinion is binding and can only be challenged before 
the courts); working with the employers and with the Labour Inspection Services in actions 
regarding  discrimination  at  company  level  (such  as  visits,  denouncing  discriminatory 
practices,  etc.),  namely  after  receiving  a  complaint  of  a  victim  of  discrimination;  giving 
assistance  to  victims  of  discrimination,  by  providing  advice;  analysis  of  collective 
agreements after their publication to check whether they include discriminatory clauses (if 
this  is  the  case,  the  Agency  can  directly  challenge  the  employer  to  correct  the 
discriminatory clause and if the employer does not comply with this request, present the 
case to the public lawyer, who can take it to court in order to have these clauses declared 
null and void). 

In practice, the role of the CITE has been very important over the years.  

B. 

Commission for Citizenship and Gender Equality (CIG) 

The second public body in the field of gender equality is the CIG. In Portugal, an official 
body with wide competences in the field of women’s rights and gender equality has existed 
since  1977.  This  body  has  had  different  names  over  the  years:  Comissão  da  Condição 
Feminina,  created  in  1977  and  replaced  in  1991  by  the  Comissão  para  a  Igualdade  de 
Género  e  os  Direitos  da  Mulheres  (CIDM),  and  replaced  again,  in  2006,  by  the  present 
Agency, named Comissão para a Cidadania e Igualdade de Género (CIG), whose by-laws 
are now included in Decree-Law No. 202/2006, of 7 October 2006. 

The CIG (www.cig.gov.pt) is a governmental body, directly depending on the Presidency 
of the Council of Ministers, so it is not an independent body. Nevertheless, the CIG has a 
scientific counselling body, where private experts in gender equality are represented and 
it works closely with private associations and NGOs in this area. 

The goals of the CIG, as defined in Decree-Law No. 202/2006, of 7 October 2006, are the 
following: to contribute to the improvement of education regarding citizenship; to promote 
gender equality in all areas; to protect maternity and paternity; to promote equality in the 
participation of men and women in all areas of life; to promote reconciliation of family and 

70 

 
 
 
 
 
 
 
 
working life; to fight domestic violence, gender violence and human trafficking and to give 
support to the victims of such practices.  

In pursuit of these goals, the CIG has wide competences in relation to gender equality, 
including in the areas of gender violence and domestic violence, reconciliation of family 
and  professional life,  women’s  studies,  education  and  self-employment.  In  these  areas, 
the Commission develops studies and performs research, provides legal information and 
counselling, edits publications and disseminates information, and works with NGOs in the 
several areas related to gender equality.  

In practice, the more important role of this body has been in the area of legal counselling 
(especially as regards domestic violence, gender violence and maternity/paternity issues) 
and in the publication of gender studies.  

11.8 Social partners  

Social  partners  can  play  a  major  role  in  the  enforcement  of  gender  equality  law  since, 
under the Portuguese Constitution (Article 56(2)(a)) and under the Labour Code (Article 
470), all bills regarding employment and industrial relations issues must be presented to, 
and must be discussed with, the social partners, and the breach of this stipulation makes 
the Act unconstitutional and therefore not applicable.  

Due to this rule, all legal provisions concerning labour law are, in fact, discussed with the 
social  partners  on  a  regular  basis,  and  this  includes  provisions  on  gender  equality.  In 
Portugal,  within  the  context  of  the  Conselho  Económico  e  Social  (‘Social  and  Economic 
Council’),  the  social  partners  and  the  Government  meet  regularly  in  a  permanent 
committee  (Comissão  Permanente  da  Concertação  Social  (CPCS)  –  ‘Social  Consultation 
Permanent  Committee’)  and  in  practice,  the  legislation  related  to  employment  and  to 
industrial relations is discussed and actively ‘negotiated’ in this Committee by the  social 
partners and the Government.  

Gender equality law in the area of employment also has to be discussed at this level so 
the social partners can play a very active role here. However, in practice, gender equality 
is not traditionally considered an important subject by the social partners.  

11.9 Other relevant bodies 

There are no other relevant bodies to be mentioned in the area of gender equality. 

11.10 Evaluation of implementation 

In  the  author’s  view,  EU  law  related  to  equality  bodies  has  been  well  implemented  in 
Portugal. 

11.11 Remaining issues 

At  another  level,  collective  agreements  can  be  a  very  important  instrument  to  promote 
the practical implementation of legal provisions on gender equality. To this purpose, two 
provisions of the Labour Code are worth mentioning: the provision concerning the content 
of collective agreements; and the provision on the assessment of collective agreements 
by the CITE.  

The LC establishes that collective agreements should implement the necessary measures 
to enforce equality (Article 492(2)(d)). However, this rule is not mandatory and equality 
issues are not an important issue in collective bargaining. This situation could change if 
these issues were to be considered as mandatory content of collective agreements, since 
these agreements are binding and may be declared to be generally applicable.  

71 

 
 
 
 
 
 
 
 
 
 
 
 
 
The LC also establishes a system of assessment of the content of collective agreements 
by the CITE, performed during the first 30 days after the publication of these agreements 
and designed to check them for possible discriminatory clauses and promote elimination 
of  such  clauses  by  the  court  (Article  479).  This  system  has  already  proved  to  be  very 
efficient,  either  because  the  CITE  convinces  the  social  partners  to  change  the  clause  in 
question, or, when this does not happen, because the court declares the clause null and 
void.  

72 

 
 
 
12  Overall assessment  

In  the  author’s  view,  Portuguese  legislation  formally  complies  with  EU  law,  although 
exceptions are apparent concerning some specific points, such as the burden of proof rule 
in harassment situations and the extent of social protection regarding some professional 
categories, especially as regards self-employed persons, and maternity protection, again 
in the field of self-employment. 

In some areas, the level of protection granted by national legislation goes even beyond 
EU  law,  as  in  the  case  of  parental  leave  and  other  family-related  leave,  in  the  case  of 
positive  action,  or  as  regards  the  very  active  role  of  the  CITE  in  collective  agreement 
evaluation, or in direct work with the employers as regards pay transparency and equal 
pay plans. 

However,  when  looking  beyond  the  legal  framework,  the  material  weaknesses  of  the 
system are very apparent, especially on four points. 

Firstly, although the law establishes many protective measures, the State does not always 
finance them where needed, and therefore some of these measures do not work in practice 
(this  is  true  for  some  of  the  maternity  and  paternity  measures).  Secondly,  there  is  no 
practical implementation of the legal measures by collective agreements, with or without 
the  assistance  of  the  State.  Thirdly,  there  is  no  relevant  case  law  describing  gender 
equality (aside from those indicated in section 11.11 in relation to collective agreement 
provisions with a discriminatory content), since in Portugal hardly any cases have been 
decided in this area. Finally, the regular surveys conducted by the CITE in relation to pay 
show that the pay gap between men and women is still significant (still 17.5 % in 2017),37 
thus  allowing  the  conclusion  that  even  regarding  such  a  traditional  issue  as  equal  pay, 
there is still a lot to be done. 

This  situation indicates  a  lack  of  practical implementation  of  the  legal  provisions  in  this 
area. The system exists in law, but its practical effectiveness is weak. 

Specifically regarding the period covered by the updating of this Report (from 1 January 
2018  to  31  December  2018)  it  is  worth  mentioning  the  importance  of  one  of  the  legal 
developments  which  has  occurred  at  national  level  in  the  field  of  equality:  Law  No. 
60/2018, of 21 August 2018, on equal pay. This piece of legislation may have an important 
impact  in  this  area  in  the  near  future,  as  for  the  first  time,  it  puts  in  place  a  system 
intended  to  disclose  possible  pay  differences  within  companies  and  imposes  on  the 
employers the duty to implement internal plans to  eradicate such differences, imposing 
tight timetables for the application of the measures. 

In any case, the Portuguese legal system is already very comprehensive and generally in 
line with EU Law, as indicated above. This being the case, actions intended to raise social 
awareness  on  equality  issues  at  all  levels  and  aiming  to  promote  the  practical 
implementation of the legal provisions already in place, are more important.  

At  this  level,  the  following  topics  seem  to  be  attracting  the  attention  of  the  relevant 
stakeholders (politicians, social partners, public agencies and NGOs in this area, and the 
media)  in  more  recent  years,  by  way  of  public  debates  and  campaigns,  legislative 
proposals  and  a  variety  of  implementation  programmes:  the  topic  of  domestic  violence 
and  more  broadly,  violence  against  women;  the  topic  of  reconciliation  of  family  and 
working life; the topic of the gender pay gap, which periodically emerges; and the topic of 
gender equality in decision-making, including a discussion on the possibility of enlarging 
the quota legislation approved in 2017 to private but non-listed companies.  

37   Report CITE, page 33. 

73 

 
 
  
 
 
 
 
 
 
                                                   
Still at this more practical level, it is also worth mentioning the importance of the formal 
and informal work performed by both Equality Agencies, in their own fields, and the role 
of  the  Labour  Inspection  Services  in  the  active  implementation  of  gender  equality, 
especially in the field of employment.  

74 

 
 
Bibliography 

- 

- 

- 

- 

- 

Equality 

between 

Comissão  para  a  Cidadania  e  Igualdade  de  Género  (CIG)  (2018),  Prevenção  e 
Combate à Violência contra as mulheres e violência doméstica – 2018 (‘Prevention 
and Combat of Violence Against Women and of Domestic Violence – 2018’), CIG ed., 
Lisbon, 2018, available at https://www.cig.gov.pt/wp-
content/uploads/2018/11/AF_CIG_ViolDomestica_A4.pdf. 
Comissão para a Igualdade no Trabalho e no Emprego (CITE) (2018), Relatório sobre 
o Progresso da Igualdade entre Homens e Mulheres 2017 (‘Report on the Progress 
of 
2017’), 
Men 
http://cite.gov.pt/asstscite/downloads/2017_Relatorio_Lei_10_2001.pdf. 
Palma-Ramalho, M. do Rosário (2016) (2015) (2014), Tratado de Direito do Trabalho 
(Treaty  on Labour Law),  I  – Dogmática Geral (Fundamentals on Labour Law), 4th 
edition),  Coimbra  (Almedina  Ed.),  2015,  II  –  Situações  Laborais  Individuais 
(Employment  Contract),  6th  edition,  Coimbra  (Almedina  Ed.),  2016,  and  III  – 
Situações Laborais Colectivas (Industrial Relations), 2nd edition, Coimbra (Almedina 
Ed.), 2015. 
Palma-Ramalho, M. do Rosário (2009), O direito da igualdade no Código do Trabalho 
–  contributo  para  uma  reflexão  (Equality  provisions  in  the  Labour  Code  –  some 
reflections): A Reforma do Código do Trabalho, Coimbra (Coimbra Ed.), 173-189. 
Palma-Ramalho, M. do Rosário / Coelho Moreira, Teresa (2018) (coord.), A Igualdade 
nas Relações de Trabalho (‘Equality in Employment Relations’), Estudos APODIT 5, 
Lisboa (AAFDL Ed.).  

Women 

and 

Other references to be included in the bibliography at EU level 

- 

- 

- 

Palma-Ramalho, M. do Rosário (2009), Direito Social da União Europeia (European 
Union Social Law), Coimbra (Almedina Ed.). 
Palma-Ramalho, M. do Rosário (2009), Reconciling Family and Professional Life and 
the Gender Equality Principle in Employment, European Gender Equality Law Review 
(EGELR), 2009/2, 7-15. 
Palma-Ramalho,  M.  do  Rosário  (2003),  Garantir  a  Igualdade  Remuneratória  entre 
Mulheres e Homens na União Europeia, (also translated into English and published 
under the title Guaranteeing Equal Pay between Women and Men in the European 
Union), Lisboa, (CITE Ed.). 

75 

 
 
 
 
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