Women's pursuit of equality goes back at least to the period of the French Revolution of 1789. The fight has covered diverse facets in accordance with the rights that women aspired to secure for their gender and the temporal, geographical and circumstantial context that determined each of the battles.

Since women triggered the movements to affirm their role in society and the reduction of the legal status of inferiority, a number of triumphs have been noted, ranging from the extension of their rights to adequate protection due to their physical and mental characteristics and their role in society.

Regarding employment relationships, these triumphs are reflected primarily in the prohibition of discrimination regarding either access to or during employment, the protection by virtue of their physical characteristics, marked protection from harassment (particularly sexual) as well as during pregnancy and maternity, essentially supported by the various international treaties and conventions concluded over the years.

Law No. 23/2007, of 1 August - Labor Law or LT, sought to ensure the international principles related to female employees by establishing maternity protection and special rights of female employees, in Articles 10 to 12.

In the context of the protection of female employees, LT confers to pregnant women the right (i) not to perform work that is clinically unadvisable to their state of pregnancy; (i) not to perform night work, whether exceptional or extraordinary, or to be transferred from the place of work from the third month of pregnancy, unless at her request or if it is necessary for her or the unborn child's health; (iii) to interrupt daily work to breast-feed, in two half-hour periods or in a one-hour period without loss of remuneration, up to a maximum period of one year; (iv) not to be dismissed without cause, during pregnancy and up to one year after giving birth.

From the analysis of article 11 of the LT, it can be easily seen that although the heading of the same refers to the special rights of female employees, its content is restricted to pregnant employees.

The approach in this article will be confined to the reflection on the extent to which Article 11 (d) of the LT does in fact constitute a special right of female employees.

The referred article prohibits the dismissal of female employees without just cause during pregnancy and up to one year after giving birth. However, on the one hand, this provision does not provide protection to female employees that justify a special qualification, since in legal rigor, under LT no employee, whether man or woman, pregnant or not, should be dismissed without just cause.

On the other hand, the LT does not provide for any special sanction for the employer nor rights to the employee in case of dismissal without just cause during the pregnancy or until a year after the birth.

It seems that the provision in question, in the terms in which it is established, creates legal uncertainty and a false conviction of special protection for pregnant employees against dismissal without just cause.

Thus, in the context of the revision of the LT which is in course, it seems appropriate to examine that provision, with regard to the intention of the legislator and its effectiveness.

Regarding this matter and considering the general principle that no employee should be dismissed without just cause, we suggest that the LT adopts the recommendations of Convention No. 183 of the International Labor Organization concerning the Revision of the (revised) Convention on the Protection of Maternity prohibiting the termination of the employment contract based on the discrimination due to child's birth or pregnancy status and ensure stability in employment and the irreducibility of pay, in particular:

1. Ensure that maternity does not constitute a source of discrimination for employment, including access to employment
2. Prohibit the termination of a female employee's employment contract during pregnancy, during the period of maternity leave, in the period following her return to work to be determined by local law, on grounds of pregnancy, childbirth and its consequences, or breastfeeding; and
3. Ensure the right to return to the same job or equivalent position with the same pay when the female employee returns to work at the end of maternity leave

Likewise, and in order to ensure the effectiveness of the above established principles, the LT should establish how the special rights of a pregnant woman will be safeguarded in the event of breach by establishing the duties to be attributed to employers and corresponding rights guaranteed to employees on the one hand.

On the other hand, it is important to reduce the inequality between men and women in relation to responsibilities as fathers and mothers by guaranteeing rights to the father, which allows the family responsibilities to be borne equally by one or other gender, thereby reducing the discrimination and devaluation of female employees in accessing and maintaining employment.

The article was also published in the Sal & Caldeira Newsletter No 41 and you can click here to access the article. It is reproduced with permission of SAL & Caldeira Advogados LDA.

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