Remedies and enforcement

• Author: Lopes, Dulce; Vicente, Joana
• Pages: 57-69

57

6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Portugal, the following procedures exist for enforcing the principle of equal treatment:

Control of constitutionality procedure

Every court has jurisdiction to apply the principle of equality. Furthermore, the courts may

not apply norms that contravene this principle (Article 204 of the Constitution). The refusal

to apply any norm on the grounds of its unconstitutionality or the application of a norm

whose unconstitutionality has been raised during the proceedings may be the subject of

an appeal to the Constitutional Court against court decisions (Article 280(1) of the

Constitution).

Labour courts procedures (for private sector)

Specialised labour courts (Tribunais do Trabalho) deal with discrimination in employment

in the private sector. They are part of the general judicial system but deal only with labour

law cases concerning employment relationships, work-related accidents and illness,

appeals against fines and disputes concerning social security rights. They deal with all

questions arising from the drafting, execution and termination of employment contracts.

These courts also deal with appeals regarding sanctions imposed by administrative

agencies for non-compliance with employment laws.

Alternative disputes resolution in labour law (private sector)

No specific procedures for mediation in relation to discrimination are provided for in the

Labour Code. However, the rules for the labour courts make it mandatory for the judge

presiding over a case to hold at least one conciliation conference between the parties before

trial, and require the courts to try to mediate in any labour dispute coming under their

jurisdiction (Articles 32(2), 36(2), 51(1), 51(2), 55(2) and 70(1) of the Labour Procedure

Code – the code containing the rules of procedure for labour issues in accordance with

Decree-Law 480/99 of 9 November 1999 (as amended by Decree-Law 323/2001 of 17

December 2001, Decree-Law 38/2003 of 8 March 2003, Decree-Law 259/2009 of 13

October 2009 and Law 63/2013 of 27 August 2013).84 Mediation by labour courts is

binding.

Article 492(2)(f) of the Labour Code also states that collective agreements should include

mechanisms for conciliation (Articles 523 et seq.), mediation (Articles 526 et seq.) and

arbitration (Articles 529 and 506 to 511) in labour disputes.

Racial discrimination is subject to disciplinary measures and the sanctions may go as far

as dismissal. However, victims have no right to intervene in the disciplinary procedure.

They have the right to file a complaint with the labour courts and to give evidence or to

present witnesses.

Administrative procedures and administrative courts (for the public sector)

For public employees, the law provides a system of internal (hierarchical) administrative

appeals that, once exhausted, allows public employees to challenge final decisions taken

84 Labour Procedure Code (Código de Processo do Trabalho), available at:

www.pgdlisboa.pt/leis/lei_mostra_articulado.php?nid=487&tabela=leis&so_miolo.