This summary of age discrimination law in Portugal has been prepared by Pedro Pinto, Reis, Alexandre Jardim & Associados, the Ius Laboris member for Portugal: www.pbbr.pt
Overview
The Portuguese Constitution sets forth a principle of equal treatment and the Portuguese Labour Code establishes a general principle of non-discrimination applicable to both employees and job applicants, pursuant to which, an individual cannot be discriminated, among others, on the basis of birth, race, sex, age, religion, opinion or any other personal, social or political circumstances. Non-discriminatory principles such as this are part of the protection granted to employees and job applicants as result of Directive 2000/78/EC, which was transposed by the Labour Code.
Both direct and indirect discrimination are outlawed in Portuguese jurisdiction.
According to Portuguese legislation:
Direct discrimination occurs when a person is treated less favourably than other people in a similar situation, due to reasons of birth, race, age, sex, etc.;
Indirect discrimination occurs when an apparently neutral provision, criterion or practice may have harmful effects on a person, unless the provision, criterion or practice can be objectively and reasonably justified.
Who's covered?
Legal provisions on age discrimination are applicable to both private employees and public servants.
What enforcement/remedies exist?
Breach of the legal provisions that prohibit discrimination is considered gross misconduct and may lead to the imposition of fines varying between €2,040,00 and €61,200,00.
The above does not preclude the claimant from bringing civil liability actions on the basis of these infringements according to the general principles of law.
In addition, breach of age discrimination provisions by the employer may constitute a justified reason for the employee to terminate the employment contract. The employee will be entitled to compensation.
Finally, Portuguese law considers that any act with regard to an employee that may affect him/her on the grounds of discrimination shall be invalid. So, any act towards an employee that constitutes discrimination or breaches the prohibition of discrimination is automatically void.
How common are claims?
Age discrimination claims (or discrimination claims based on any protected characteristic), are not common in Portugal. We are not aware of any published statistics on this type of claim.
In any case, the Appeal Court of Lisbon, in 2009, considered the decision of an Airline Company which excluded a job applicant from applying for a given position due to his age as discrimination.
In fact, the company announced the existence of an open position to Air Traffic Agent and Specialized Commercial Employee. As a preference requirement, applicants should be no more than 27 years old.
The Court considered that such a requirement was not objectively and reasonably justified due to the nature of the tasks to be performed. Hence, the Court decided that the company breached the legal provisions that prohibit age discrimination and ordered it to pay a fine of € 8,188,00.
What claims are most common and what are trickiest issues for employers?
Please refer to the previous question.
Are there any specific exceptions in your laws?
A difference in treatment based on a protected characteristic, notably on age, will not constitute discrimination if the occupational activity concerned or the context in which it is carried out forms a justifiable and determining requirement.
Exceptions to the general prohibition against discrimination include differential treatment on the grounds of age, where this is based on the nature of the working conditions, an employment policy, the job market or the need for professional development. This exception only applies where the aim is legitimate and the means of achieving it proportionate.
For example, a job advertisement seeking candidates up to 25 years old to participate in a movie about students of the Lisbon University may be considered legitimate.
On the opposite side, an employer’s internal career policy provision limiting those 50 or more from being promoted to a given professional level may be considered unlawful.
Retirement ages
The state pension age was 65 for many years, but was increased in 2015 in an attempt to tackle the deficit and has been annually reviewed since then. In 2023, the legal retirement age is 66 years and 4 months. Some occupations benefit from a lower retirement age, for example, air traffic controllers and airline pilots.
Individuals can ask to take old age pension but this may not be imposed on them by employers. If a person asks to take old age pension after the age of 66 and up to 70, the pension amount will be increased by a certain percentage, but after the age of 70, there will be no increase to the pension amount.
In some circumstances, such as long term unemployment, it is possible for people to draw their old age pension early, but generally this will involve a reduction in the amount payable. Certain exceptions apply to very long careers (longer than 40 years of contributions).
It is not possible to force an employee to retire. Retirement is a voluntary decision made by the employee. Nevertheless, if the employee reaches the age of 70 without having retired, his or her employment contract will be automatically converted into a fixed term employment contract, of six months’ duration, which can be renewed for similar periods, without a maximum limit. The employer will be entitled to terminate the contract with 60-days’ notice, no compensation being due.