What are the possible consequences for the employer if a worker has suffered discrimination or harassment in the context of termination of employment?
Employment & Labour Law
An employer is vicariously liable for the acts of individuals committed in the course of employment. Whether or not the employer knew or approved of the discriminatory act is irrelevant but it is a defence for the employer to show that it took all reasonable steps to prevent the individual from doing the discriminatory act or acts of that type.
If an employer is liable for discrimination the Employment Tribunal can order the employer to pay unlimited compensation. The amount of compensation in each case will depend on the extent of the financial losses suffered by the individual. Employers can also be ordered to pay a lump sum in respect of injury to feelings. This is compensation for non-financial loss and can range from £600 up to £30,000 in the most serious cases. In the most serious cases an additional sum of aggravated damages may also be awarded. A further category of punitive, exemplary damages may be awarded in exceptional and rare circumstances.
An Employment Tribunal can make a declaration of the employer and employee’s rights arising from the case. This is usually in addition to but can be instead of awarding compensation. It can also make a recommendation for reducing the adverse effect on the claimant of the matters to which the employment tribunal proceedings relate. The scope of such recommendations is however rather narrow.
An employer could face a discrimination and/or discriminatory dismissal claim in this instance. This claim is initiated pursuant to the relevant equality legislation and is heard by the Workplace Relations Commission. Compensation is the most common form of remedy and can be up to two years gross remuneration.
In respect of an employee who has suffered harassment, in addition to a statutory harassment claim based on protected discriminatory grounds, it is also open to an employee so impacted to bring a personal injuries claim to the Irish High Court on the basis that the employee has suffered a psychological injury. Damages are generally the remedy awarded by this court and can be unlimited in their amount.
In addition to the consequences stated above, an employer may be subject to a TAFEP investigation if a complaint is lodged against them. Depending on the outcome of the investigation and the employer’s responses, the matter may be referred to MOM for investigation and action.
Employees may also bring civil claims in the courts against the employer for wrongful dismissal if it can be shown that such discrimination or harassment constitutes a breach of the implied term of mutual trust and confidence. Depending on the court’s findings, the employer may be liable to compensate the employee in damages or reinstate the employee. Reputational consequences may also arise.
Employees found to have been unfairly terminated in violation of the civil rights statutes or anti-retaliation provisions can resort to the various administrative agencies and the court systems. If an employee is found to have been terminated in violation of any applicable statute, the employee may be entitled to some or all of the following remedies: 1) reinstatement to former position; 2) monetary damages for wages and benefits lost as a result of the termination; 3) monetary damages for any emotional or physical distress suffered as a result of the employer’s actions; 4) punitive damages intended to punish an employer for egregious violations of the law; and 5) attorneys’ fees.
Limits under federal law on the amount of compensatory and punitive damages a person can recover vary depending on the size of the employer, ranging from $50,000 to $300,000. These limits do not apply to awards of backpay, frontpay or attorney’s fees.
In addition to the information detailed in answer 11 above, and from an employment legal perspective, the Work Inspectorate may impose an economic fine to the employer up to 187.515,00 Euros.
If an employer acts against the principal of equal treatment and does not fulfil its obligations to protect the employee both mentally and physically and terminates the employment contract without any valid ground or just cause (see Question 1), the employee is entitled to request reinstatement along with a compensation up to four months' wages plus reinstatement compensation, to be not less than four months' and not more than eight months' wages.
On the other hand, employee who has faced discriminatory treatment or harassment has the right to terminate the employment contract for just cause pursuant to Article 24 of the Labour Law and ask for pecuniary and/or non-pecuniary damages that he/she suffered due to such discriminatory and wrongful treatment or harassment pursuant to relevant Articles of the Turkish Code of Obligations (e.g. mobbing, insult, racism) along with the notice and severance pay that he/she is entitled as per the Labour Law.
The employers may be forced to reintegrate the employee to the job and the payment of the labor rights caused between the termination and the reintegration and in some cases, the payment of special indemnifications. Eventually, the employer may also be subject to imposition of fines buy the Ministry of Labor.
Abusive terminations according to art. 336 of the Swiss Code of Obligations and the Federal Act on Gender Equality generally lead to a compensation claim of the employee in an amount up to six month’s salary (art. 336a of the Swiss Code of Obligations and art. 5 of the Federal Act on Gender Equality). In order not to forfeit such compensation claim, the employee must adhere to some procedural requirements: The employee must submit his/her written objection to the notice before expiry of the notice period, fail to reach an agreement with the employer on the continuation of the employment and bring the compensation claim before the courts within 180 days since the end of the employment (art. 336b of the Swiss Code of Obligations and art. 9 of the Federal Act on Gender Equality). Only in selected cases of gender-discriminatory ‘revenge terminations’, the employee can also request a continued employment instead (art. 10 of the Federal Act on Gender Equality).
If notice is given during a proscribed period according to art. 336c of the Swiss Code of Obligations, the notice has no legal effects at all. If the proscribed period falls within an ongoing notice period, the latter at least stands still.
In the case where an employee is dismissed or forced to resign due to unlawful discrimination or harassment, and the employee challenges the validity of the dismissal or resignation, it is likely that the dismissal or resignation will be deemed void and the employee will be reinstated to his/her original position unless a monetary settlement is reached between the parties. In such a case, the employer must pay unpaid salary for the period from the dismissal or resignation until the reinstatement. The employer may also be required to compensate the employee for emotional damages due to the discrimination or harassment and/or resulting termination.
Any employer violating Section 15-16 of the LPA shall be imposed a fine not exceeding THB20,000. For unfair termination, there is no set scale for payments; however, we have seen cases where the court has awarded at least one month for every year of service.
Where a workman category employee alleges discrimination or harassment by the employer in context of termination of employment, he/she would be able to file a complaint of unfair labour practice against the employer. Where the allegations of unfair labour practice are proved against the employer, the employer may be required to reinstate the employee, and may be awarded punishment involving imprisonment and/or fine.
In case of sexual harassment, as referred in question number 11, in the event that the victim or witnesses were dismissed or punished within 180 days of the accusation, it will be considered, unless proven to the contrary, that the dismissal or sanctions are due to reprisals. In this case the dismissal will be described as abusive and will entitle the employee to a special indemnity from the employer.
Likewise, the legal liability of harassment in the workplace -regardless of who constitutes it- rests with the employer. The employer may incur in liability for not sanctioning, tolerating and allowing labour harassment. In addition to the fines that can be applied by the Ministry of Labor in case of resolving the existence of workplace harassment in a company, the employer may be ordered to compensate the employee for the moral damage caused by the harassment.
As noted above, an employer could be liable for compensation for wrongful termination under the Labour Law. In addition, the employer could be exposed to criminal sanctions or sanctions under Federal Decree-Law No. 2 of 2015, depending on the specific facts of the discrimination or harassment at issue.
Provided that an employee, who is under any of circumstances mentioned in question 11, is dismissed when he/she is not at fault, it will be deemed as illegal termination and the employee is entitled to the ‘double economic compensation’ or re-instatement. The employer should bear civil liabilities, and criminal liabilities if any crime is constituted (see question 11).
As to the consequences of harassment, the company may incur liabilities from labour law like illegal termination, civil law and criminal based on different serious negative results.
When discriminated against, an employee may put forward a claim for both economic and general damages. The general damages, also called compensation for discrimination, constitutes remuneration for the violation of the law.
Further, any condition found in an individual agreement or collective bargaining agreement, which is discriminating against someone according to the Swedish Discrimination Act, may be declared invalid if the person discriminated against requires it.
The dismissal may be invalid and an employee can file a lawsuit with the court to invalidate dismissal or petition with the Labor Relations Commission for a remedy. If the dismissal is invalidated, the employer must reinstate the employee and make a back-pay. The employee may file damage claim for mental distress.
In addition to the risk of annulment of dismissal, the employer is exposed to paying specific civil damages to compensate harassment or discrimination. Besides, discrimination and harassment (of a sexual or moral nature) constitute a criminal offence (up to 3 years imprisonment and a fine of up to 45,000 euros for discrimination, and up to 2 years imprisonment and a fine of up to 30,000 euros for harassment).
Persons affected by discrimination or harassment can involve the Equal Treatment Commission, but are also entitled to claim for compensation at court. Harassment is considered to be a form of discrimination under the Equal Protection Act 2004 and is thus prohibited. Persons who are discriminated against or harassed at work, whether men or women, whether directly or indirectly, are entitled to be compensated for the damage from the employer. If the court finds that the complainant has been discriminated against because of gender or marital status, she/he may lodge a claim for material compensation and compensation for the humiliation (immaterial compensation). A harassed employee can request adequate damages of at least € 1.000 as compensation. In addition to ordering a financial award, courts can order the employer to withdraw or amend their discriminatory policies.
The possible consequences for the employer if a worker has suffered discrimination or harassment in the context of termination of employment vary depending on a number of factors, including the applicable jurisdiction, the nature of the discrimination/harassment suffered, and the type of remedy sought.
Remedies under Human Rights Legislation
In every jurisdiction, if a worker has suffered discrimination or harassment in the context of dismissal, the worker can bring a complaint under applicable human rights legislation, which is investigated and adjudicated in accordance with the administrative procedures set out in the legislation. Human rights tribunals generally have broad remedial jurisdiction, though the available remedies – and thus the possible consequences for the employer – vary from jurisdiction to jurisdiction. Remedies awarded in cases of discrimination or harassment in the context of termination can range from damages to the full reinstatement of the complainant.
In some jurisdictions, including Ontario, not only tribunals but also courts have jurisdiction to award monetary damages and other remedies available under applicable human rights legislation if they find that a violation of the legislation has taken place.
In addition to being liable for damages and other remedies in favour of the employee, an employer that violates human rights statutes in certain jurisdictions may be subject to prosecution. For example, and while criminal prosecutions against employers for alleged violations of employment legislation are rare (except for alleged health and safety violations as outlined below), in Ontario, every person who infringes a right under the discrimination and harassment provisions of the Ontario Human Rights Code is, upon conviction, guilty of an offence punishable by a fine of up to $25,000.
Remedies under Health and Safety Legislation
If an employer terminates an employee in reprisal for initiating a workplace violence or harassment complaint, or otherwise contravenes applicable health and safety legislation, the employee may file a complaint. Procedures and remedies vary by jurisdiction, and may include awards of damages or reinstatement. In addition, depending on the jurisdiction, the employer may be found guilty of an offence punishable by fine or imprisonment. In Ontario, for example, the Ministry of Labour vigorously enforces the health and safety legislation and reports that for 2013/14 it obtained 780 health and safety convictions, with fines totaling almost $10 million.
Termination of employment cannot be directly or indirectly based on a criterion protected by the Belgian anti-discrimination legislation, such as the worker’s gender, age, sexual orientation, civil status, birth, wealth, religious or philosophical belief, present or future health, disability, physical or genetic features, political opinion and language, social origin, trade union affiliation, nationality, (presumed) race, skin colour, descent or national or ethnic origin.
It is also forbidden to discriminate against part-time workers as compared to full-time workers and against fixed-term workers as compared to workers with an employment contract of indefinite duration.
If the dismissal is found discriminatory, the employer will be liable for damages equal to six (or three) months’ remuneration or to damages covering the actual loss suffered (the extent of which must be proved by the worker). These damages can be combined with a severance allowance.
A worker who suffers harassment can claim damages either on the basis of common law or on the basis of the regime provided by the law of 4 August 1996. In the second case, if the worker is successful, he/she may be awarded damages corresponding to three to six months’ remuneration or to the actual loss suffered (the extent of which must be proved by the worker).
A worker victim of discrimination can also try and claim an allowance for manifestly unfair dismissal.
The risk for the employer is the reinstatement of the employee and the payment of additional damages suffered for the discrimination or harassment.
Any dismissal in breach of the provisions on equal treatment is deemed null and void. The employee concerned shall have the right to claim in court as a matter of urgency, the annulment of the dismissal and his/her reinstatement within the business.
Any breach of the legal provisions regarding discrimination can also lead to conviction to prison of up to a minimum of eight days and a maximum of two years and a fine between EUR 251 and EUR 25,000.
If the employee can prove that in the case of a dismissal for operational reasons the employer did not carry out a social selection or made a mistake carrying out the social selection, then the dismissal is invalid.
In case of discrimination under the General Equal Treatment Act, the employer is obliged to pay compensation for the damage resulting therefrom.
Should the employer be found guilty of discrimination, the employee may be eligible for a compensation which depends on the type and extent of the discrimination as well as its duration and circumstances. Legislation sets no maximum amount for the compensation pursuant to Non-Discrimination Act. The minimum amount of compensation to be paid for discrimination based on gender, pregnancy or childbirth, gender identity or gender expression is EUR 3.570 pursuant to Act on Equality between Women and Men.
If discrimination relates to termination of employment, the employee may be entitled to additional compensation as explained in Section 15 below. It should be noted, that the aforesaid compensations or other liabilities do not limit the possibility to receive compensation for damages under the Tort Liability Act or any other relevant legislation.
Additionally, an employer may face criminal charges based on the Finnish Penal Code. An employer or its representative may be subjected to a fine or imprisonment for at most six months if found guilty for work discrimination without an important and justifiable reason.