Workplace harassment, crime of stalking, or both?

On April 12 of this year, the Coimbra Court of Appeals issued an innovative judgment, which addressed the legislative developments that have taken place over recent years:

• Inclusion of the crime of stalking in the Criminal Code
  
  
• Amendments to the provisions on harasssment in the Labor Code

The case involved a female employee of a municipal water and sanitation company whose duties were progressively and unjustifiably diminished by her line manager.

The court decided to uphold the first-instance verdict, which found the employee’s line manager guilty of aggravated stalking.

The crime of stalking was introduced into Portuguese law in 2015, making it a relatively recent addition to the country’s legal system. This is why this particular judgment is so innovative.

However, it is important to note that the basis for this crime has its origins in the Council of Europe Convention on preventing and combating violence against women and domestic violence, which is a subject far from the issue of workplace harassment.

Under the current legal provisions, the act of stalking in the workplace cannot simply be dismissed. This is because certain factors make the crime more serious, such as when it targets a certain category of individuals (e.g., public servants) while they are working or because of their work, and when the perpetrator is an employee with significant abuse of authority.

However, it is important to interpret with caution the various situations that can be classified as workplace harassment and not succumb to the temptation of categorizing them as a specific criminal offense. 

In 2017, the expression “without prejudice to any criminal liability provided for by law” was added within the concept of harassment, following the provision of administrative liability.

Therefore, from a labor law perspective, the issue that arises from the above legislative changes is whether the lawmakers intended to (i) establish a separate criminal offense that aligns with a typical situation of workplace harassment; or (ii) refer to the existing crimes of the Criminal Code (i.e., the crime of stalking).

This was one of the main arguments that the defendant used in his appeal against the first-instance verdict. Specifically, the defendant claimed—among other reasons—that the facts did not constitute the crime of stalking but rather a case of workplace harassment, which should be punished exclusively as a labor offense and not as a criminal offense. This argument was based on the existence of a gap in the criminalization of typical harassment behavior.

However, the Coimbra Court of Appeals rejected this argument, stating that the defendant’s conduct, in addition to constituting harassment, also met all the requirements to be considered as the crime of stalking.

It is important to note that the administrative offense of workplace harassment is attributed to the employer and not to the individual who commits the acts.

Therefore, we understand that what occurred in this specific case was a “forced” criminal liability,^[1] as the defendant (i.e., the line manager) could not be punished because the proven conduct and the specific criminal offense in question did not fully align.

However, the seriousness of the facts is not in question, and the possibility of lawmakers creating a specific criminal offense for workplace harassment is not ruled out – on the contrary, it is recommended.

However, it may not be the optimal approach to invoke a criminal offense such as stalking for facts that are already covered by administrative law. This would result in connecting the prohibition of workplace harassment and stalking without having a necessary and precise delimitation.

Therefore, uncertainty remains as to how judges will rule from now on: will they adopt a conservative approach or, on the contrary, overcome the boundaries of the labor administrative offense with relative ease?