Exceptions

• Author: Lopes, Dulce; Vicente, Joana
• Pages: 46-54

46

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Portugal, national legislation provides for an exception for genuine and determining

occupational requirements.

The legislation on equality and non-discrimination in the workplace allows for some

differences in treatment. Article 25(1) of the Labour Code in effect prohibits all practices

of discrimination by the employer on the grounds listed. According to the Code, a difference

in treatment that is based on a characteristic related to a ny of the grounds listed will not

constitute discrimination if, by reason of the nature of the particular occupational activities

concerned or of the context in which they are carried out, such a characteristic constitutes

a justifiable and determining occupational requirement, provided that the objective is

legitimate and the requirement is proportionate (Article 25(2)).

The same reasoning is accepted by Law 3/2011 concerning the prohibition of discrimination

in access to and the exercise of self-employment (Article 4(4)) and by Law 46/2006, which

prohibits and punishes discrimination based on disability and on a pre-existing risk to

health (Article 5(3)).

The authors consider that national law complies with the directives and that no

discrepancies in interpretation will arise.

4.2 Employers with an ethos based on religion or belief (Art icle 4(2) Directive

2000/78)

In Portugal, national law does not explicitly provide for an exception for employers with an

ethos based on religion or belief. However, this exception can be derived from a

combination of several legal provisions.

First, the refusal to hire a person on the ground of his/her religion comes under the scope

of the prohibition of discrimination laid down by Article 24 of the Labour Code, although

Article 25(2) of the Code states:

‘It does not constitute any discrimination when the behaviour based on a

discrimination factor that constitutes a justifiable and determining occupational

requirement for the exercise of the profession, given the nature of the activity in

question or the context of its implementation, where it is objectively justified by a

legitimate aim and the means of achieving that aim are proportionate.’

Religion or belief may be considered a justified discrimination factor, provided the employer

has an ethos based on such religion or belief.

Secondly, Article 351 of the Labour Code considers just cause for dismissal in general, and

provides for dismissal when the behaviour of the worker makes the continuation of the

employment relationship impossible from a practical point of view. In this respect, the

situation of the employer, the character of the relationship between the parties or between

the worker and his/her co -workers and any other relevant circumstances must be taken

into consideration. It can be deduced that conflicts between organisations with an ethos

based on religion and belief and their employees would be solved on the basis of the same

principle. Article 351 could also be applicable when there is an ‘ideological’ conflict between

the worker and the organisation (for instance, a trade union or a political party), but as it

is an issue of just cause for dismissal, that would have to be the subject of a court ruling.

Finally, Article 3 of the Law on Religious Freedom (Law 16/2001) states that churches are

free to organise themselves, exercise their functions and provide church services. The