In Portugal, although the major developments in Labor Law began in collective phenomena, it should be retained, especially in today’s reality, that underlying the execution of an employment contract, there is an agreement of wills between individually considered subjects, the employer on the one hand and the employee on the other.

Despite the employer’s apparent supremacy, through the years, the law has come to continuously increase a wider protection of employees’ rights, namely personality rights, and data, including the enhancement of the right to information to and by the employee to the employer, leading to the question whether the employee is allowed to lie or omit relevant information to the employer and under what circumstances.

How do I handle the issue of background checks, including those involving sensitive personal data such as criminal records?

When checking the backgrounds of an employee, there are two moments and two types of employee data to be considered:

• Prior to hiring, and for the purposes of selection and recruitment: identification data, curricular data, family information, and sometimes criminal record data, psychological profile data, and health data are processed.
• During the employment agreement: employee’s data is processed to ascertain its productivity, health conditions, and compliance with the rules established by the employer.

As this data falls within the scope of constitutionally protected rights (right to privacy and right to personality), and in accordance with the principle of proportionality, its access must obey to three sub-principles: necessity   indispensability), adequacy (compliance with its purpose), and strictu sensu proportionality.
In Portugal, the Labour Code prevents the employer from obtaining information from either the job applicant or the employee:

• on its private life, except when strictly necessary and relevant to assess its suitability; and,
• on its health or pregnancy, except when requirements related to the nature of the professional activity are justified, in which case the motivation must be reduced in writing.

In conclusion, access to sensitive personal data, for example, health, criminal record, religion, among others, can only be collected if personally provided by the employee and processed exclusively for the purposes for which they are intended, and under no circumstances may they be requested by the employer, except when strictly necessary and indispensable to the execution of the employment agreement.

Are there particular issues in checking candidates’ social media profiles?

Given privacy of private life is protected, as is access to information related to it, it will be relevant to ascertain in the analysis, when evaluating the profile of candidates through social networks, whether the information that is collected compromises the candidate’s access to employment or the maintenance of the employment agreement.

The employer, when accessing such information, even if it is of public access, will not be able to use it against the employee or candidate. If the employer uses the collected information on social media, it compromises the freedom of expression, religion, among others established in the law and Constitution.

Can I ask candidates about their Covid-19 vaccination status?

In Portugal, by law, the employer cannot for the purpose of admission to or continued employment, require to the applicant or employee to undertake or present medical tests or examinations of any nature. In this regard, as vaccination against the COVID-19/SARS-CoV-2 virus is not yet mandatory, the employer cannot substitute itself for the Portuguese Government. By law, it is forbidden to question the employee or impose vaccination, either when hiring or in the maintenance of employment agreements, under the consequence of assuming an illicit and highly discriminatory behaviour, which constitutes a very serious misdemeanour.

Are employees entitled to lie or to omit information; if information is subsequently found to be false, what can I do?

The Labour Code foresees that the employee must inform the employer about relevant features for the provision of the employment activity, namely, his academic and professional training and qualifications, as well as his practical experience in the activity to be hired, in which situations the employee cannot lie and/or omit relevant information for the conclusion and/or maintenance of the employment agreement.

Parties must therefore act in accordance with the principle of good faith, which includes the duty to inform. However, it is understood that in exceptional situations, it is assumed that the employee may lie or withhold information if the questions addressed to him by the employer are unlawful, in which case he cannot terminate the employment agreement on the grounds of malice.

Regarding the right to lie by the employee, doctrine has been divided. One part considers it admissible in the pre-contractual stage, while the other considers it inadmissible. A converging point for both is the admission of the right to lie and/or omit during the execution of the employment agreement, only in case of unlawfulness of the questions placed by the employer.

In view of the above, and in the event of the employee omitting relevant information or providing false information during the employment agreement, the employer may:

• declare the employment agreement null and void or voidable
• sue based on liability and of guilt in contrahendo
• initiate disciplinary proceedings that may lead to dismissal with just cause

How should I deal with the personal data of unsuccessful candidates?

In Portugal, the labour law foresees that the data recorded during the recruitment process, whether successfully concluded or not, must be kept on file for five years, thus allowing the inspection entities to verify the employer’s compliance with equality and discrimination regulations.

The above record must be made by gender separation and must contain the following information:

• Invitations to fill positions
• Job offers announcements
• Number of applications for curricular assessment
• Number of candidates attending pre-selection interviews
• Number of candidates awaiting admission
• Results of admission or selection tests or exams
• Social balances concerning data, which allow the analysis of the existence of possible discrimination against people of one of the genders in access to employment, professional training, and promotion, and working conditions.