HR Internal Investigations 2025 Comparisons

In Portugal, HR internal investigations (known as procedimento prévio de inquérito) may be opened to investigate a disciplinary offence prior to starting the relevant disciplinary procedure. Any evidence or indication of disciplinary offence may give rise to the opening of an HR internal investigation.

However, HR internal investigations may only be opened when the facts underlying the disciplinary offence are not immediately clear to the company, and the company requires further research before making a formal accusation to the employee (known as a nota de culpa or “notice of faults”).

Considering the need to investigate further an alleged infraction, HR internal investigations suspend two limitation periods associated with disciplinary procedures, namely:

• the limitation period for making use of disciplinary powers, which expires:
1. one year after the disciplinary offence was committed; or
2. within the statute of limitations of criminal law if the offence also constitutes a crime; and
• the limitation period to initiate a disciplinary procedure, which expires 60 days after the employer or a hierarchical superior with disciplinary powers becomes aware of the disciplinary offence.

The suspension of the periods of limitation mentioned above also makes HR internal investigations relevant tools in cases of special complexity.

Additionally, the authors note that the final decision of the disciplinary procedure may only include facts covered in the accusation (with the exception of facts that mitigate the employee’s responsibility), granting further relevance to carrying out a solid HR internal investigation.

Oftentimes, circumstances which typically give rise to an HR internal investigation being opened may include breaches in the obligations to treat employees and hierarchical superiors with due respect, to carry out work with diligence, to be loyal to the company (which includes, among others, the obligation to refrain from competing with the company) or the obligation to ensure conservation and good use of work-related assets.

In recent years, following relevant changes to the Portuguese labour law and an overall collective conscience of the seriousness of this topic, our team has also noticed an increase in the number of internal investigations opened to examine situations of harassment (both psychological and sexual).

The Portuguese Labour Code includes the legal bases for HR internal investigations. Articles 351 et seq, which establish the rules for dismissals for facts attributable to the employee (dismissal with just cause), are of particular importance, with a focus on Article 352, which specifically regulates HR internal investigations.

The fact that HR internal investigations are included in the chapter of the Portuguese Labour Code concerning dismissals with just cause does not mean that they can only be used for that purpose. In fact, HR internal investigations may be used to investigate any type of disciplinary infraction and with the intention of applying any legally admissible disciplinary measure.

Article 127 of the Portuguese Labour Code, which lists the general obligations of the employer in the employment relationship, is also significant. It establishes the employer’s obligation to initiate a disciplinary procedure (which, in this scenario, typically includes an HR internal investigation) if they become aware of an alleged situation of harassment in the workplace.

It is also relevant to mention Article 329 of the Portuguese Labour Code, which establishes the deadlines relevant to initiating or concluding an HR internal investigation and a disciplinary procedure.

In general terms, Portuguese law does not establish specific channels for reporting disciplinary concerns within a company.

The one relevant exception to the above rule is the whistle-blowing channel. Law 93/2021, of 20 December, established that companies with 50 or more employees must create internal reporting channels, which employees may use to report certain breaches of European Union law found within the scope of their professional activity. Please refer to section 8.1 Whistle-Blowing below for more information on protection of whistle-blowers.

Additionally, it is common for large companies to establish internal reporting channels for disciplinary infractions, typically by providing the contacts of one or more employees within the HR department who have some degree of training in this respect.

HR internal investigations are considered a part of the disciplinary power granted to employers within the employment relationship. As a general rule, internal HR investigations must be initiated and carried out by the person or persons who have the power to make decisions on behalf of the company, according to its by-laws (typically, the directors).

These powers may, however, be delegated – and it is common for company directors to issue a power of attorney granting disciplinary powers to, for example, the HR director. Disciplinary powers may only be delegated to a person within the company who is a hierarchical superior of the employee to be investigated.

After the HR internal investigation is initiated, the employer’s representative typically chooses to appoint an instructor tasked with carrying out the investigation. The instructor is typically external counsel, such as a lawyer.

Employers are required to initiate a disciplinary procedure, which typically includes an internal HR investigation if they become aware of alleged harassment (either psychological or sexual) in the workplace.

HR internal investigations, such as procedimentos prévios de inquérito (see 1.1 Circumstances), may only be conducted when the circumstances surrounding the disciplinary offence are unclear to the employer. For instance, this applies when the employer knows a disciplinary offence occurred but does not know the offender’s identity, but it also applies when the employer is generally aware of the offence and the offender’s identity but needs specific details (such as relevant dates and the context of the incident).

Within this scope, the authors note that the Portuguese Supreme Court has decided (Proceeding No 01S591, from 11 October 2001) that HR internal investigations are only lawful when there is a “real and effective need” to investigate in order to substantiate the accusation – which occurs either when the employer does not know who committed the infraction or does not have knowledge on the of all relevant facts and circumstances associated with the alleged infraction.

HR internal investigations opened when the employer has sufficient knowledge to substantiate an accusation, may be deemed unlawful and, consequently, hinder the legality of the entire disciplinary procedure.

Furthermore, HR internal investigations may only be opened within 30 days of the employer becoming aware of the suspected irregular behaviour. For this purpose, it is important to note that the investigation is only considered opened when the employer acts to gather any type of evidence – a mere written decision to initiate an investigation is not sufficient.

The decision to open an internal HR investigation, as opposed to starting a disciplinary procedure immediately, will typically depend on the employer’s awareness of the relevant facts associated with the disciplinary infraction and the complexity of the case.

Disciplinary measures may only be applied with respect to the facts included in the formal accusation served to the employee. In this regard, having at least a relative understanding of the facts constituting the disciplinary offence prior to preparing the formal accusation is particularly relevant.

In this respect, opening an HR internal investigation is important when the facts underlying the disciplinary offence are not clear to the employer, allowing the employer to carry out an investigation prior to actually initiating the disciplinary procedure.

Even after the company discovers the alleged disciplinary offence through a report from another employee, as a general rule, this employee does not have a specific right to be informed of the opening of an HR internal investigation.

On the other hand, informing the reporter is not specifically prohibited by law. Notwithstanding this, considering:

• the preliminary nature of HR internal investigations;
• the fact that when opening an HR internal investigation, the employer does not have a clear understanding of the disciplinary offences committed by the alleged offender; and
• the employer’s obligation to respect and treat the employee with politeness and probity, avoiding acts that may affect the employee’s dignity or that are discriminatory, harmful, intimidating, hostile or humiliating,

the authors consider that there is a general obligation of confidentiality associated with HR internal investigations (and, for that matter, with disciplinary procedures in general) and that, within this framework, the employer should not inform the reporter of the opening of an HR internal investigation.

The respondent does not have a right to be informed whether an HR internal investigation will be opened. However, the employer is allowed to inform the respondent if it is not inconvenient for the investigation.

The authors note that this refers only to HR internal investigations – as the opening of a disciplinary procedure (which includes an investigation phase) must be communicated to the employee.

Under Portuguese law, public authorities are not required to be informed of the opening of an internal HR investigation.

However, after the HR internal investigation is concluded when opening the relevant disciplinary procedure, the employer must send copies of the communication of opening of the disciplinary procedure and of the formal accusation to the employee’s committee (comissão de trabalhadores) and the relevant union, if the employee is a union representative.

Considering the general obligation of confidentiality associated with HR internal investigations (please refer to 2.1 Communication to the Reporter), signing confidentiality agreements covering internal investigations is not common in Portugal.

In fact, employees have a general obligation not to disclose to third parties information relating to the employer’s organisation – which, as per the authors’ understanding, includes opening and conducting HR internal investigations and disciplinary procedures. Should an employee carry out the HR internal investigation (please refer to 1.4 Responsibility), breach of confidentiality may be considered a disciplinary offence in itself, allowing for the opening of a disciplinary procedure and the possible application of disciplinary measures.

Notwithstanding this, confidentiality agreements or NDAs are not generally prohibited, and parties may be asked to sign them within the scope of an HR internal investigation. As a general rule, confidentiality agreements within the scope of employment relationships are not without limits.

While not specifically provided for in the law, there is an understanding that confidentiality obligations may not hinder the possibility of, for example, the employee denouncing illegal actions taken by the company to the relevant authorities (as protection of public order) or using such information in court actions to defend their rights.

HR internal investigations in Portugal are preliminary to a disciplinary procedure. Consequently, conducting an investigation before an HR investigation procedure is not permissible.

Witnesses may be interviewed if they have witnessed facts relevant to the HR internal investigation. The employer may interview any number of witnesses relevant to investigate the disciplinary offence. The number of witnesses will vary according to the complexity of the case, but the number of witnesses appointed by the employer typically does not exceed ten.

Notably, within the disciplinary procedure, the respondent may also request the examination of witnesses, up to a limit of three witnesses per fact included in response to the formal accusation or up to ten in total.

Portuguese law does not establish any specific rules regarding the obligation or refusal to participate in HR internal investigations – albeit, an interviewee’s obligation to participate in an HR internal investigation will depend on whether the interviewee is or is not an employee of the company. Employers do not hold powers enabling them to order the inquiry of third-party witnesses, as would occur in judicial procedures.

However, regarding employees, if the employer has relevant reasoning to believe that a specific employee holds information relevant to the investigation, they may make attendance to interviews mandatory under the penalty of opening a disciplinary procedure against the refusing employee. This disciplinary procedure would be opened for breach of the obligation to comply with legitimate orders from the employer.

The above should be assessed on a case-by-case basis, as there may be relevant scenarios where the refusal to be interviewed would be considered admissible (for example, in the case of family members).

Interviews with witnesses may be carried out remotely through any safe videoconference platform.

Portuguese law does not establish any specific rules regarding the number, gender or seniority of the interviewers.

Portuguese law does not establish any specific rules regarding the attendance of third parties during interviews carried out within HR internal investigations. Considering the general obligation of confidentiality associated with HR internal investigations (please refer to 2.1 Communication to the Reporter), neutral third parties should not be present during interviews.

Notwithstanding this, instructors appointed within the scope of an internal HR investigation have the responsibility to conduct the interviews. The appointed instructors are typically not employees of the company, which establishes a certain degree of neutrality in the interview.

Portuguese law does not establish any specific rules regarding the attendance of support persons during interviews carried out within HR internal investigations. Considering the general obligation of confidentiality associated with HR internal investigations (please refer to 2.1 Communication to the Reporter), support persons should not be present during interviews.

As a general rule, interviewees in HR internal investigations are not accompanied by a lawyer. Nevertheless, they have a right to be accompanied by a lawyer, should they request it – as the presence of a lawyer, due to the duty of professional secrecy, does not hinder the general obligation of confidentiality associated with the investigation.

Portuguese law does not establish any specific information to be provided to interviewees at the start or the end of an interview. Considering the general obligation of confidentiality (mentioned in 2.1 Communication to the Reporter), the interviewee should be provided only with the necessary context.

Similar to what happens in the case of refusal to participate in interviews, Portuguese law does not establish any specific rules regarding the possibility of stopping an interview. As a general rule, the possibility of stopping an interview will depend on whether the interviewee is or is not an employee of the company.

Again, if the interviewee is not an employee of the company, the employer does not hold the power to oblige them to attend or to continue an interview. If they are an employee, however, the employer may use their disciplinary powers to ensure that the employee attends and continues the interview.

Of course, the above rule should take into consideration the specific circumstances of the interviewee. Should the interviewee have relevant reasons to stop the interview, the employer should allow them to do so.

While it is not specifically established in Portuguese law, courts have held that taking minutes of interviews is mandatory. 

If the respondent requests the interviewing of witnesses during the disciplinary procedure, the absence of minutes from these interviews will render the procedure invalid, as it indicates that the witnesses were not interviewed.

Moreover, minutes should contain a relatively complete description of what the witness has stated – while not specifically prohibited, summarised minutes are not common in internal investigations in Portugal. The instructor of the disciplinary procedure typically prepares the minutes. 

For clarity and certainty, it is best practice for the interviewee to sign the minutes on the same day as the interview after reviewing them and confirming that they accurately reflect the discussion. In cases where interviews are conducted online, it is typical for the minutes to be signed at a later date. In this process, the minutes are emailed to the interviewee, who then reviews and signs them before returning them to the instructor or employer.

Interviews within the scope of HR internal investigations are not usually recorded.

In accordance with Portuguese legislation on data protection, the consent of the employee should be requested in writing prior to the recording of the interview in this specific case.

Portuguese law does not limit investigations to specific types of evidence. Therefore, in principle, all types of evidence may be considered for an internal HR investigation, which not only includes interviews but also documentary evidence and expert testimony.

However, specific circumstances in the method of obtaining information may deem it inadmissible in an investigation or disciplinary procedure. Video security records, for example, and the possibility of using them in internal HR investigations are frequently discussed in Portuguese courts.

The Portuguese Labour Code establishes that remote surveillance (including, for example, security records) is only admissible when:

• it was not installed to control the employee’s performance;
• its purpose is the protection and safety of people and property or when particular requirements inherent to the nature of the activity of the company justify its use; and
• the existence of remote surveillance in a workplace location is duly identified.

Additionally, the Data Protection Law (Law 58/2019, of 8 August) establishes that images and other personal data recorded remotely by the employer making use of remote surveillance may only be used in HR internal investigations and disciplinary procedures “to the extent that they are within the scope of criminal proceedings”.

Portuguese courts have a broad understanding of the above rules and, within that scope, consider that images or sounds captured through remote surveillance may be used in disciplinary procedures, provided that such surveillance was lawfully installed and used and that the disciplinary offence constitutes, at least in the abstract, also a criminal offence. It has been deemed unnecessary for the employer to place a criminal charge in order to use those images or sounds as evidence in a disciplinary procedure.

In addition, obtaining evidence from an employee’s professional computer and mobile phone is also the subject of discussion in Portuguese courts. The Portuguese Labour Code rules that employees have the right to confidentiality regarding the content of personal messages and access to information of a non-professional nature that they send, receive, or access, particularly via electronic mail. Messages of a personal nature are legally and constitutionally protected. Within this scope, the employer should not access them – and consequently, they should also not be used as evidence in disciplinary procedures.

An email sent by an employee to another employee during their normal working period from a professional computer may still be considered a personal email if its content is not professional. Furthermore, even if sending personal emails is prohibited explicitly under a company’s internal regulations, the employer must still not access or use the content of a personal email for disciplinary purposes.

If the internal regulations include such a rule and the employer can demonstrate the personal nature of the email without accessing its content, they may use the general information from the email, such as the addressee, date and subject line.

Within this framework, it is important to reference the “fruit of the poisonous tree” doctrine, also known as the Makel-Theorie. This theory, which is applicable to criminal law, can also be analogously applied to internal HR investigations and disciplinary procedures. It establishes that any evidence derived, even indirectly, from illegal evidence is itself considered illegal.

To provide an example of the above, should an employer obtain specific evidence resulting from the investigation of an unlawfully obtained email, that second evidence is also not admissible for the purposes of an HR internal investigation.

With the exception of whistle-blowers, there is no specific obligation established by Portuguese law to take action to protect the reporter.

Notwithstanding the above, employers do have a general obligation to ensure the safety of employees in their workplace, warding off any acts that may affect the employee’s dignity or that are discriminatory, harmful, intimidating, hostile or humiliating.

This obligation seems to encompass an obligation to remove from the workplace potential threats to an employee’s safety, even when they come from other company employees.

Employers frequently allow reporting employees to work from home or to be temporarily placed in a different physical location with the employee’s agreement or upon their request to avoid possible situations of hostility from the respondent. This is particularly common in cases of harassment.

If the protective measures are taken within the rules established in Portuguese labour law, the employer will not experience any potential adverse consequences.

Should the company fail to take appropriate measures to protect an employee, specifically if the employee is being harassed by the respondent, this may entail consequences for the employer – and, in fact, even if another employee perpetrated the harassment, the employer is responsible for repairing the damage caused by occupational illnesses.

Additionally, being subjected to harassment (perpetrated either by the employer or by other employees) is considered just cause for termination by the employee, granting them the right to receive legally established compensation.

There is no specific obligation established by Portuguese labour law to take action to protect the respondent.

However, as mentioned in 4.1 Protection of the Reporter, employers are obligated to respect all employees and treat them with politeness and probity, avoiding acts that may affect their dignity or that are discriminatory, harmful, intimidating, hostile or humiliating.

When conducting an HR internal investigation, the company does not have conclusive information on the employee’s wrongful behaviour. Through the internal investigation (and disciplinary procedure), the employer may ascertain, with relevant certainty, whether the employee’s behaviour constituted a disciplinary offence.

Consequently, before the conclusion of the disciplinary procedure, the employer may not take any action (with the exception of those specifically established by law, such as the preventive suspension) that may be deemed to affect the employee’s dignity or to be discriminatory, harmful, intimidating, hostile or humiliating.

The general obligation includes a specific responsibility for confidentiality related to disciplinary procedures (please refer to 2.1 Communication to the Reporter) and it is essential for the company to adhere to this obligation and ensure that all employees involved do the same. Should the company fail to comply with its general obligation of respecting employees when carrying out a disciplinary procedure, that may be considered a situation of harassment at work.

As mentioned in 4.1 Protection of the Reporter, workplace harassment may entail consequences for the employer, including responsibility for occupational illnesses or termination with just cause by the employee, with the right to compensation.

The employer may not take disciplinary measures against the respondent prior to concluding the HR internal investigation and the corresponding disciplinary procedure.

Nonetheless, the company may take preventive measures during the HR internal investigation (including suspension).

The company may suspend the employee during the HR internal investigation for 30 days prior to the formal accusation. In this case, the company must justify, in writing, that, considering evidence of facts attributable to the employee, their presence in the company is inconvenient. The company must also state that it has not yet had the opportunity or possibility to prepare and deliver the formal accusation.

During suspension, the employee maintains the right to receive their remuneration. However, the suspension is the employer’s prerogative, and there are no specific adverse consequences to not suspending the employee, even when it is advisable.

The employer has a general obligation to ensure the safety of employees in their workplace, warding off any acts that may affect the employee’s dignity or that are discriminatory, harmful, intimidating, hostile or humiliating.

If, within the scope of an HR internal investigation or disciplinary procedure, the employer has justified reasons to consider that the safety of the company’s other employees is hindered, it must take appropriate action to restore such safety and protect the employees from harmful behaviours.

Should the employer refrain from taking such action, harassment may arise. As mentioned in 4.1 Protection of the Reporter, harassment at work may entail consequences for the employer, including responsibility for occupational illnesses or termination with just cause by the employee, with the right to indemnification.

Firstly, and as mentioned above, it is important to note that there are two distinct phases of a broader “investigation” when there is a suspicion of disciplinary offence by an employee – the HR internal investigation and the disciplinary procedure itself. The HR internal investigation may only be used when it is necessary for the company to further investigate the facts underlying the disciplinary offence in order to prepare a detailed formal accusation to be served to the employee.

If the company has access to clear and complete information in respect of the alleged disciplinary offence, the employer may not initiate an HR internal investigation. The formal accusation should be served as briefly as possible, within 60 days from the date on which either the employer or a hierarchical superior with disciplinary powers became aware of the offence. Considering that this phase suspends the limitation periods for disciplinary procedures, the company is required to conduct the investigation “diligently.”

This diligence is assessed on a case-by-case basis, but the company should, as a general rule:

• be committed to the investigation, working expeditiously and without undue delay; and
• only carry out acts of investigation which are relevant and adequate to its purposes.

The formal accusation must be served to the employee within 30 days from the conclusion of the HR internal investigation.

Considering that the HR internal investigation is, precisely, internal and that no relevant judgment is associated with it, the employee is not attributed any specific procedural guarantees at this phase. Once the disciplinary procedure is opened, the Portuguese Labour Code establishes several procedural guarantees for the employee, which include:

• the right to access the file of the disciplinary procedure (which should include the documentation and results of the HR internal investigation);
• the right to present a written defence to the accusation;
• the right to request the filing of documents constituting evidence in the disciplinary procedure;
• the right to request specific acts of investigation; and
• the right to request the examination of witnesses (up to a limit of three per fact and of ten in total).

The company may have internal regulations that establish additional guarantees for the employee in case of HR internal investigation or disciplinary procedure.

In case these internal regulations are published and in force, they should be binding to the company, as they create in the employees the legitimate expectation that these guarantees will be followed in case of HR internal investigation or disciplinary procedure. 

No party bears the burden of proof, both in an HR internal investigation and in a disciplinary procedure.

When deciding on a disciplinary measure, such as dismissal, the employer does not need to prove the accuracy of the facts stated in the formal accusation against the employee. The purpose of the disciplinary procedure is not to establish an objective truth; rather, it is to support the employer’s viewpoint and to justify the decision to impose a disciplinary measure.

Judgment on whether there are relevant grounds to apply a disciplinary measure is made by judicial courts in case the employee challenges the sanction and in accordance with the evidence produced within the scope of the judicial process. 

Considering that no party bears the burden of proof (as mentioned in 5.3 Burden of Proof), there is no degree of proof required to substantiate an allegation in HR internal investigations in Portugal.

HR internal investigations interrupt the limitation periods established for initiating and deciding on disciplinary procedures (please refer to 1.1 Circumstances).

While there are no established terms for ending an HR internal investigation, it should be conducted diligently. This diligence is assessed on a case-by-case basis, depending on the complexity of the alleged disciplinary offence.

The above-mentioned rule was established to avoid possible abuses by employers. Employers who could extend an HR internal investigation indefinitely would avoid the limitation periods established for initiating and deciding on disciplinary procedures. Within that scope, whenever the employer has collected sufficient information to issue a substantiated formal accusation, the HR internal investigation must be closed.

Two possible outcomes stem from the conclusion of an HR internal investigation: either the employer collected relevant information to substantiate a formal accusation, or the employer did not collect relevant information to substantiate a formal accusation.

In the first scenario, the employee must receive the formal accusation within 30 days from the conclusion of the HR internal investigation, initiating the disciplinary procedure with a view to applying a disciplinary measure.

If the employer concludes that there is no relevant information to substantiate an accusation and decides to abandon the HR internal investigation, they are not required to communicate with the employee or any other party.

In either scenario, there is one case where the communication of the results of the HR internal investigation to the reporter is advisable. Given the employer’s responsibility to investigate any reported instances of harassment in the workplace, the employer should inform the reporter that an HR internal investigation was conducted. Additionally, the employer should clarify whether any disciplinary actions were initiated as a result of the investigation.

Portuguese labour law does not establish any rules on the form in which the conclusion of an HR internal investigation must take. However, it is standard practice for the instructors to prepare a written report presenting the investigation’s conclusions to the employer.

Considering that Portuguese labour law does not establish any rules on the formalities associated with the conclusion of HR internal investigations, there are no legally established requirements on the information that must be included in the written reports.

Notwithstanding this, final reports on HR internal investigations typically include the following information:

• an abbreviated description of the acts practiced during the HR internal investigation (eg, the opening of the investigation, the appointment of instructors, filing of documents, examining of witnesses or experts);
• description of the facts with disciplinary relevance which were ascertained as a result of the investigation; and
• brief assessment on whether these facts may be considered a disciplinary offence.

If the HR internal investigation is either abandoned or the employer concludes that there are no relevant facts or information to accuse the employee and start a disciplinary procedure, the employee does not have the right to access the report (as mentioned in 6.2 Procedure for Ending an HR Internal Investigation), the respondent employee may not even become aware that they were being investigated.

Notwithstanding this, if the HR internal investigation leads to a formal accusation of the employee, they will be granted the right to consult the file of the disciplinary procedure, which should include all of the investigations that occurred prior to the accusation, including documents, statements of witnesses, and the written report that concluded the HR internal investigation.

The respondent employee is allowed to consult this file within ten business days of receiving the formal accusation.

As a general rule, the conclusions of an HR internal investigation are not required to be communicated to any authorities.

Notwithstanding this, there are situations when communicating the conclusions of an HR internal investigation to the authorities is advisable – including, for example, when the investigation leads to the conclusion that crimes were committed within the organisation – which will be relevant to reducing possible reputational damage to the company.

In that scenario, even if it is not mandatory, the company should file a report before the police or the public prosecution.

Considering the general obligation of confidentiality associated with HR internal investigations (please refer to 2.1 Communication to the Reporter), and with the exception mentioned in 6.2 Procedure for Ending an HR Internal Investigation, it is not recommended that the conclusion of an HR internal investigation be communicated to third parties.

Upon terminating an HR internal investigation, if there is sufficient information, the employer may start a disciplinary procedure to apply a disciplinary measure.

The disciplinary procedure should be conducted in accordance with the rules and deadlines established in the Portuguese Labour Code, granting the respondent employee the right to present a written defence and request that specific evidence be filed with the procedure. At the end of the disciplinary procedure, the employer may decide to apply one of the following sanctions:

• reprimand;
• registered reprimand;
• financial penalty;
• loss of vacation days;
• suspension from work with loss of pay and seniority; and
• dismissal without compensation.

The disciplinary measure must be proportionate to the seriousness of the offence and the degree of guilt of the employee. At the end of the disciplinary procedure, the disciplinary measure may be communicated within the company’s context.

Depending on the information that led to the HR internal investigation, the employer may decide to implement non-disciplinary measures following an investigation that did not lead to the opening of a disciplinary procedure.

From the authors’ experience, while measures like team-building activities or mediation are not still common in Portugal (at least in the aftermath of internal investigations), the employer may decide to rearrange the team to avoid conflicts escalating between employees.

The employer is allowed to collect personal data for an HR internal investigation. As a general rule, the employer does not require the employee’s consent for this purpose.

Notwithstanding this, there are limits to the personal data which may be accessed. The employer must not collect any personal data that would be considered to be in breach of the employee’s intimacy and privacy. The right to privacy covers both access and disclosure of aspects relating to the employee’s intimate and personal sphere, including, but not limited to, data related to family, emotional and sexual life, state of health, and political or religious beliefs.

Furthermore, the Portuguese Labour Code establishes specific limitations for personal data collected under two formats: remote surveillance and emails (for more information on both, see 3.12 Other Fact-Finding).

Without prejudice to remote surveillance and emails and the general limit on respect for employees’ privacy, there are no specific rules associated with collecting or processing personal data for the purposes of an HR internal investigation.

Taking into consideration the general obligation of confidentiality associated with HR internal investigations (please refer to 2.1 Communication to the Reporter), as a general rule, parties may not access the content or personal data included in an HR internal investigation or disciplinary procedure.

The exception to the above rule is the right of the respondent employee to consult the disciplinary procedure within ten business days of receiving the formal accusation. In that scenario, the employee has the right to access all of the information contained in the procedure – there being, as a general rule, no limits to the personal data which they may access.

In 2021, Portugal approved a Whistleblower Protection Act (Law No 93/2021, of 20 December), transposing EU Directive 2019/1937 of the European Parliament and the Council.

The Whistleblower Protection Act establishes that natural persons who report or publicly disclose an infraction based on information obtained during the course of their professional activity are considered whistle-blowers. In order to benefit from protection, the whistle-blower must be acting in good faith and have serious grounds for believing that the information is, at the time of the complaint or public disclosure, the truth. Additionally, to be protected, the whistle-blower must carry out the report or disclosure within the terms and using the channels established by the Whistleblower Protection Act.

While not every legal infraction is relevant for the purposes of this law, the range of infractions is wide, including all breaches of European law in the areas of public procurement, money laundering and terrorist financing, product safety and compliance, and protection of the environment, among others.

In terms of protection, the Whistleblower Protection Act establishes that it is generally prohibited to carry out acts of retaliation against a whistle-blower. Any act or omission that, motivated by the report or disclosure, directly or indirectly causes material or non-material damage to the whistle-blower in their professional context is considered an act of retaliation.

In respect of employment, it is worth noting that:

• changes in working conditions, such as job position, hours, place of work or remuneration, non-promotion of the employee or breach in employer obligations;
• suspension of employment contract;
• negative performance evaluation or negative reference for employment purposes;
• non-conversion of a fixed-term employment contract into an open-ended contract whenever the employee had legitimate expectations of such conversion;
• non-renewal of a fixed-term employment contract;
• dismissal; or
• inclusion on a list based on a sector-wide agreement, which may make it impossible for the whistle-blower to find a job in the sector or industry in question in the future,

when carried out up to two years after the report or public disclosure of the infraction, are presumed to be motivated by the report or disclosure and, consequently, are presumed to be an act of retaliation.

The Portuguese labour law establishes specific protections in respect of allegations concerning sexual harassment or violence.

Any unwanted behaviour with sexual connotation, in verbal, non-verbal or physical form, with the aim or effect of disturbing or embarrassing a person, affecting their dignity, or creating an intimidating, hostile, degrading, humiliating or destabilising work environment is considered sexual harassment.

Victims of sexual harassment are entitled to compensation for material and non-material damages caused by the harassment.

The reporter and any witnesses to the sexual harassment cannot be subject to disciplinary measures (unless there is wilful misconduct) based on statements or facts reported, whether on a judicial or administrative procedure until a final and unappealable decision is reached.

Disciplinary measures applied to employees who have reported being a victim of sexual harassment or who are a witness in a judicial or administrative procedure initiated in a case of harassment are presumed to be abusive within a year from the report or of any other form of exercise of rights related to sexual harassment. The presumption, in this scenario, reverses the burden of proof.

Employers are obligated to open an internal investigation every time they receive a report of sexual harassment. The practice of harassment is considered a grave administrative offence.

The Portuguese labour law contains specific protection against discrimination in the workplace – both direct and indirect.

Discrimination is considered direct when, due to a factor of discrimination, a person is subject to less favourable treatment than that which has been or will be given to another person in a comparable situation.

Discrimination is considered indirect whenever a seemingly neutral provision, criterion, or practice is likely to place a person, by reason of a factor of discrimination, in a disadvantageous position compared to others unless that provision, criterion, or practice is objectively justified by a legitimate aim and the means to achieve it are adequate and necessary.

In a judicial procedure, the person who reports the discrimination must indicate the employee or employees against whom they consider themselves to be discriminated against, and the employer must prove that the difference in treatment is not based on any factor of discrimination.

Victims of discrimination are entitled to compensation for material and non-material damages.

In respect of allegations of discrimination and internal investigations, acts of discrimination – when constituting an unwanted behaviour with the aim or effect of disturbing or embarrassing a person, affecting their dignity, or creating an intimidating, hostile, degrading, humiliating or destabilisng work environment – fall under the general concept of harassment and, within this scope, are subject to the specific rules and protections already mentioned in 8.3 Other Forms of Discrimination and/or Harassment.

Acts of bullying and/or mobbing will, as a general rule, fall under the scope of psychological harassment, which is also specifically prohibited under Portuguese labour law. Any unwanted behaviour that is discriminatory in nature – whether it occurs during the hiring process, in the workplace, or in professional training – aims to disturb or embarrass an individual, undermine their dignity, or create an intimidating, hostile, degrading, humiliating or destabilising work environment will be classified as harassment.

All harassment cases, including bullying and mobbing, are subject to the specific rules and protections already mentioned in 8.3 Other Forms of Discrimination and/or Harassment.

Generally, there are no special procedures that the employer must follow in the case of criminal allegations.

Notwithstanding this, if the alleged disciplinary infraction also constitutes a crime, there are some changes to the rules applicable to investigations and disciplinary procedures.

Both HR internal investigations and disciplinary procedures fall under a general disciplinary power which is attributed to employers. The right to use this disciplinary power, starting an HR internal investigation or a disciplinary procedure, expires within one year after the alleged infraction was committed – albeit, if the facts which constitute the disciplinary infraction also constitute a crime, the limitation period is extended to the one applicable in criminal law for that specific crime.

The Portuguese law does not establish special procedures in multi-jurisdictional cases – and, as a general rule, there are no specific limitations in that respect.

Notwithstanding this, HR internal investigations must be initiated and carried out by the person or persons who have the power to decide on behalf of the company or by a person to whom these powers are delegated within the company. Within this framework, while multi-jurisdictional investigations are not prohibited, it is important to understand that they must be decided on and carried out by a person within the company with whom the investigated employee works.

After the HR internal investigation is initiated (as mentioned in 1.4 Responsibility), the representative of the employer may choose a third party to carry out the investigation (the instructor). There are no limitations on the location of the instructor.