Reports of breaches are submitted by the whistleblower through internal or external reporting channels (managed by competent authorities), or through public disclosure. It should be noted that the whistleblower may only use external reporting channels when:
However, all legal persons, including the State and other legal persons under public law, employing 50 or more employees are required to establish internal reporting channels. This obligation also applies to all legal persons active in the fields of financial services, products and markets and the prevention of money laundering and terrorist financing.
This obligation must be fulfilled by June 18, 2022, the date on which Law 93/2021 comes into force, failing which a number of administrative offenses may be committed (see points 9 and 10 of this article).
Local authorities which, despite employing 50 or more workers, have less than 10,0000 inhabitants been excluded from this obligation, and it should be noted that, as regards obliged entities which are not governed by public law and which employ between 50 and 249 workers, they may share resources as regards the receipt of reports and their follow-up.
Allow secure submission and tracking of reports to ensure completeness, integrity and preservation of the report, confidentiality of the identity or anonymity of the reports and confidentiality of the identity of third parties mentioned in the reports, and to prevent access by unauthorized persons.
Independence, impartiality, confidentiality, data protection, secrecy, and absence of conflicts of interest must be guaranteed in the performance of duties.
Important note: the fact that the information was obtained during a professional relationship that has ended, as well as during the recruitment process or during another pre-contractual negotiation phase of an existing or unformed professional relationship, does not preclude reporting or public disclosure of an infringement.
The report or public disclosure may concern breaches committed, in the process of being committed or which can be reasonably foreseen, as well as attempts to conceal such violations, namely in the scope of.
Thus, this type of report is not foreseen for harassment situations, as there are already proper and legally required channels for this purpose.
Written and/or verbal reports are admitted, with the identification of the whistleblower or in anonymity. Verbal report implies its presentation by telephone or other voice message systems and, at the request of the whistleblower, in a face-to-face meeting. It may also be submitted by means of electronic authentication with a citizen card or through the digital mobile key.
Important Note: the following acts, when practiced up to two years after the report or public disclosure, are presumed to be motivated by a report, until proven otherwise
a) Changes in working conditions, such as duties, hours, place of work or remuneration, non-promotion of the employee or breach of work duties;
b) Suspension of employment contract;
c) Negative performance evaluation or negative reference for employment purposes;
d) Failure to convert a fixed-term employment contract into an indefinite-term contract, whenever the employee had legitimate expectations of such conversion;
e) Non-renewal of a fixed-term employment contract;
g) Inclusion on a list, based on an industry-wide agreement, which may lead to the whistleblower not being able to find employment in the sector or industry in question in the future;
h) Termination of a supply or service contract;
i) Revocation of an administrative act or termination of an administrative contract, as defined under the terms of the Administrative Procedure Code.
The disciplinary sanction applied to the whistleblower up to two years after the whistleblowing or public disclosure is presumed to be abusive.
Recall that the Labor Code, following Law No. 73/2017 of August 16, enshrined, in paragraph 6 of its Article 29, the prohibition of disciplinary sanctions against the employee reporting harassment, or the witnesses he or she has called, based on statements or facts contained in the records of judicial or administrative proceedings motivated by the report, before the respective final decision.
On the other hand, it is common understanding in case-law that when the employee makes a report he is not violating his duty of loyalty to his employer. However, once the report has been made, it is up to the employee to prove the veracity of the facts reported, failing which he will be in breach of his duties of loyalty, respect and protection of the employer’s good name.
It is a very serious administrative infraction, punishable with fines of between 1.000,00€ and 25.000,00€ or 10.000,00€ to 250.000,00€ depending on whether the agent is a natural or legal person.
It is a serious administrative offence, punishable with fines from €500.00 to 12.500,00€ or from 1.000,00€ to 125.000,00€, depending on whether the offender is an individual or a company.