What protection from discrimination or harassment are workers entitled to in respect of the termination of employment?
Employment & Labour Law
The Tripartite Retrenchment Guidelines state that when retrenching, employers should not discriminate against any particular group on the grounds of age, race, gender, religion, marital status and family responsibility, or disability. Although these Guidelines are non-binding, MOM will investigate complaints of discriminatory employment practices, including retrenchments that unfairly target Singaporeans, or which result in Singaporeans being replaced with foreigners. If the complaints are substantiated, the employers may have their work pass privileges curtailed.
The following specific prohibitions against discrimination of certain classes of individuals also apply:
- The Retirement and Re-Employment Act (Cap. 274A) prohibits employers from dismissing any employee below the age of 62 (or the prescribed minimum retirement age) on the ground of age. Employees who feel that they have been unfairly dismissed can write to the Minister of Manpower within 1 month of dismissal. Employers found to have breached this prohibition are guilty of an offence and will be liable on conviction to a fine not exceeding S$5,000 or to imprisonment for a term not exceeding 6 months or to both.
- Employers cannot terminate the services of female employees who are absent due to their maternity leave benefits under the EA or the Child Development Co-Savings Act (Cap. 38A). Such female employees who have served their employer for 3 months or more also cannot be dismissed without sufficient cause or on the ground of redundancy or restructuring where doing so would deprive them of any payment that (but for the termination notice) they would have been entitled to receive as part of their maternity benefits on or before their confinement date.
Breaches of these prohibitions would result in the employer being guilty of an offence and liable on conviction to a fine not exceeding S$5,000 or to imprisonment for a term not exceeding 6 months or to both.
In addition, the following general protections against discrimination and harassment may apply to the employment context:
- The non-binding Fair Consideration Framework and Tripartite Guidelines on Fair Employment Practices contain recommendations intended to prevent discrimination at the workplace.
- The Singapore courts have recognised that the implied duty of mutual trust and confidence between employer and employee may require the employer to redress complaints of discrimination.
- Employers are required under the Workplace Safety and Health Act (Cap. 354A) to take reasonably practicable measures to ensure workplace safety and health. Breaches of this duty may potentially attract criminal liability as well. In this regard, the Tripartite Advisory on Managing Workplace Harassment issued by TAFEP considers that “harassment and other psychosocial risks should be included in the overall workplace safety and health (WSH) risk management of the organisation”.
- While not specific to the employment context, any employee suffering from harassment has recourse to the remedies provided under the Protection from Harassment Act (Cap. 256A).
Although individuals employed on an “at-will” basis can be dismissed with or without cause, they are protected from discriminatory adverse employment actions, including dismissal, under the federal, state and local civil rights laws, as well as various anti-retaliation provisions.
Below is a list of statutes that protect workers from discrimination or harassment upon termination of employment, as well as throughout the employment relationship, on grounds of race, color, sex (including pregnancy), national origin, religion, age, disability, or genetic information
- Title VII and Title II of the Civil Rights Act of 1964
- Age Discrimination in Employment Act (“ADEA”)
- Americans with Disabilities Act (“ADA”)
- Pregnancy Discrimination Act (“PDA”)
- Genetic Information Non-Discrimination Act (“GINA”)
- State Laws
Many states have passed laws that prohibit discrimination within their respective jurisdictions. While some of these laws mirror federal statutes, in many jurisdictions these laws provide additional or increased protections such as prohibiting discrimination on the basis of sexual orientation and eliminating or raising caps on damages.
When challenging a dismissal before Court, an employee may allege that no grounds exist to validly support his/her dismissal and that such dismissal decision was taken on the basis of discriminatory grounds. If the claim if accepted by Courts, the dismissal will be declared as null and void, which consequence would be the the reinstatement of the employee in his/her job position plus payment of the salaries accrued from the termination date until the notification of the Court’s resolution, with the possibility to pay an additional indemnity if damages are proven before Court (some examples of employees protected from dismissals are pregnant employees, workers’ legal representatives, employees who have requested a reduction on working hours, employees who previously filed claims against the Company, etc.).
On the other hand, and employee may allege harassment in order to terminate the employment relation and being entitled to the statutory unfair dismissal severance.
According to the principal of equal treatment which is prescribed under the Turkish Constitution and Labour Law, employers must not show any act of discrimination based on their employees' language, race, nationality, sexuality, political thoughts, philosophical belief or religion with respect to the employment relationship.
Moreover, within scope of the Law on Turkish Human Rights and Equality Institution numbered 6701, discrimination based on gender, ethnicity, nationality, colour, language, religion, philosophical and political opinion, wealth, birth, marital status, medical conditions, disability and age is forbidden. This law is directly related with Labour Law issues and provides that employers or person authorized by employers cannot make discrimination to employees, job applicants, trainees or applying for this purpose including process for acquisition of information, job application, selection criteria, recruitment conditions, work and ending the employment relationship.
In the light of the above-mentioned regulations, employers cannot terminate the employment contracts on such grounds that may be considered as discriminatory or out of the scope of the principle of equal treatment. Therefore, discriminatory dismissals are deemed as wrongful terminations from the perspective of both individual and collective employment contracts.
The employees are protected against discrimination. The employees may not be discriminated against due to their age, sex, religion, race, political affiliation, economic condition or health (disability or illness).
In case the employment agreement is terminated under discrimination circumstances, the employee will be able to claim the reintegration 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.
First of all, Swiss labour law generally prohibits any termination in bad faith respectively abusive termination (see art. 336 of the Swiss Code of Obligations). Unfortunately, there are hardly any general guidelines in order to concretise this term. In case of older employees with many years of service the employer must, for example, timely inform and consult the employee regarding a planned termination and moreover evaluate the possibilities to continue the employment before effectively making him/her redundant. In case of an employee involved in a conflict at work, the employer must, for example, take reasonable measures in order to defuse the conflict before effectively making the employee redundant.
Besides that, there is very specific protection against gender-discriminatory terminations:
- The Federal Act on Gender Equality rigorously prohibits any gender-discriminatory termination;
- Art. 336 and art. 336c of the Swiss Code of Obligations protect (male) employees performing Swiss compulsory military service, civil defense service or alternative civilian service against terminations for reason of their status and against any termination while performing these services (and potentially some weeks before and following the performance of these services); and
- Art. 336c of the Swiss Code of Obligations protects pregnant employees against terminations during their pregnancy and sixteen weeks after the birth.
The Labour Standards Act prohibits discriminating against employees on the grounds of nationality, creed or social status, with respect to all aspects of the employment relationship including termination (Article 3).
The Act on Securing of Equal Opportunity and Treatment between Men and Women in Employment (‘Equal Opportunity Act’) prohibits discrimination based on gender in a broad range of areas including retirement and dismissal (Article 6).
The Equal Opportunity Act specifically prohibits employers from dismissing, or otherwise treating unfavourably, female employees for getting married, becoming pregnant, giving birth, or requesting maternity leave or other entitlements based on pregnancy or childbirth (Article 9).
In addition, dismissing or otherwise discriminating against employees for exercising their statutory rights to take childcare leave or family care leave is prohibited by the Act on Childcare Leave, Family Care Leave, and Other Measures for the Welfare of Workers Caring for Children or Other Family Members.
There are no statutes that specifically target any type of harassment directly in relation to the termination of employment, but harassment either of a sexual nature, or based on superiority within the workplace (known as ‘power harassment’), that drives an employee to resignation would constitute a tort giving rise to potential liability on both the employer and the offending individual.
An employee is entitled to claim for unfair termination under the Act Establishing Labour Courts and Labour Procedure B.E. 2522 (1979). What constitutes “unfair” termination is not adequately defined under Thai law. Discrimination and/or harassment can also be seen as a basis for claiming unfair termination. In addition, under the LPA, there is protection from discrimination or harassment as described below.
Protection from discrimination
According to Section 15 of the LPA, discrimination based on genders is prohibited. As such, an employer must treat his male and female workers equally unless it is inapplicable due to the nature or conditions of the work.
Protection from harassment
According to Section 16 of the LPA, an employer, a chief, a supervisor, or a work inspector shall be prohibited from committing sexual harassment against an employee. Additionally, sexual harassment can constitute a criminal offence under Thai law if all elements of the offence are satisfied. Apart from the criminal punishment, the employer who commits sexual harassment may be claimed compensation of the damage by an employee.
In case of redundancies the ‘last in first out’ principle is usually to be followed unless there are justifiable reasons for deviating from it. This ensures protection from discrimination between workmen to be dismissed on grounds of redundancy.
The ID Act lists certain practices to be unfair on the part of employers so as to protect workers from termination of employment. These include dismissal by way of victimisation, not in good faith, false implications or reasons, disregarding the principles of natural justice, as a disproportionate punishment not commensurate with the misconduct amongst others.
Typically employment policies provide for protection from victimisation where employees are whistle-blowers or filed complaints on harassment.
Special dismissal in case of sexual harassment is established by law which prevents and punishes sexual harassment in labour relations and protects their victims. In addition to the corresponding administrative and/or criminal complaint, the employee has the right to claim a sum of money for the damage suffered, or to be considered dismissed corresponding to a special indemnity equivalent to 6 monthly installments, cumulative to the common compensation.
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.
Unlike sexual harassment that is expressly regulated, workplace harassment or mobbing does not have express regulation in our legal system. However, it is recognized by our national jurisprudence, the human dignity and protection of any conduct that assaults in the workplace, even if the aggression does not come from the employer. It foresees the possibility that those workers who consider themselves violated in their basic dignity as a person in the workplace can file a complaint.
The employee who suffers from workplace harassment may be considered indirectly dismissed, since he does not have the legal duty to withstand acts of harassment in the work environment.
The Labour Law prohibits arbitrary termination of employment, and termination for a discriminatory reason would probably be viewed locally as arbitrary termination. If an employee is compelled to resign because of harassment, then the employee could bring a complaint against the employer for constructive termination. In either case, compensation for wrongful termination, discussed below, could be payable.
In addition, some acts of harassment could rise to the level of criminal offenses, and some acts of discrimination might breach other statutes. For example, Federal Decree-Law No. 2 of 2015 introduced general restrictions on discrimination and hate crimes. It provides that a person cannot be discriminated against because of his religion, creed, doctrine, sect, caste, race, colour or ethnic origin. This law could apply to discrimination in an employment context, whether during the recruitment process or during the employment.
In addition, the Dubai International Financial Centre (the “DIFC”) and the Abu Dhabi Media Free Zone (the “ADM”) have their own employment regulations, which contain specific anti-discrimination provisions. The DIFC employment regulation also contains provision prohibiting harassment.
According to the existing laws and regulations of China, discrimination towards workers is forbidden in certain aspects. More specifically, the employees can bring a claim in the People’s Court if the employer:
A. Establishes discriminatory restrictions for the rural workers; or
B. refuses to hire females or heightens the recruiting standards for females on the basis of gender; or
C. adds any contents in the labour contract restricting female workers from getting married or bearing children; or
D. establishes discrimination against the disabled; or
E. refuses to hire the worker who is a pathogen carrier of an infectious disease or hepatitis, who violates no relevant regulations, etc.
Any employer who impairs the legitimate rights and interests of employees and causes any property losses or other damages may bear civil liabilities, and criminal liabilities if any crime is constituted.
As to harassment, this concept does not exists in the current national laws and regulations of the PRC, however, there are similar concepts existing in civil and criminal law. Whether the workers are entitled the protection from harassment during the employment relationship depends on many factors, such as whether it violates any stipulations from the law or regulation, whether the company regulates such behavior internally, etc.
According to the Swedish Discrimination Act, it is unlawful to discriminate against, both directly and indirectly, job seekers and employees on the grounds of sex, sexual identity, sexual orientation, ethnic origin, religion or religious beliefs, mental or physical identity and age. Discrimination is prohibited both at the recruitment stage, during the course of the employment and in connection with the termination of employment.
An employer cannot discriminate employees in terminating employment relationship based on gender, age, nationality, religion, race, physical handicap, pregnancy, child delivery, etc. An employer must not dismiss victims of sexual harassment or an employee who alleges occurrence of sexual harassment. Discrimination may constitute unfair dismissal. In general, a dismissed employee may bring the dispute before the district court. In addition, the terminated employee may file a petition for a remedy with the district Labor Relations Commission. An employee who dismissed discriminatorily can file a complaint with the National Human Rights Commission of Korea which can investigate and issue a recommendation for remedy.
A dismissal that, in fact, relies on a discriminatory reason (e.g., origin, gender, family status, union affiliation etc.) or takes place pursuant to acts of harassment, is subject to annulment by the labour court. Such annulment entitles the employee to reinstatement and/or high damages.
Anti-discrimination has played an increasing role in the Austrian legal landscape. Furthermore, the core of Austrian Antidiscrimination law can be found on a federal level in the Equal Treatment Act. The Equal Treatment Act applies to discrimination in the field of private employment on the grounds of sex, sexual orientation, ethnic origin, religion and belief, and age. Moreover, it prohibits discrimination with respect to access to goods and services provided by private persons, companies and the federal state on the grounds of ethnic origin. Any direct or indirect form of discrimination in employment or occupation (and since 2011 also in connection with legal relationships) is prohibited. Besides, the Act also applies to employment-assimilated persons, apprentices, foreign-national employees or persons completing a trial period in an enterprise, home workers and persons posted to Austria by non-Austrian employers within the framework of labour subcontracting loan work, and aims at protecting employees against gender-based discrimination, irrespective of their working hours. The anti-discrimination laws apply to all employees, in both public and private sectors, and the employer cannot discriminate against an employee because of their allegation of discrimination. For this discrimination to be proved, it must be associated, in fact and in timing with the employee’s allegation. There is no exact defined qualifying period for these types of claims.
All Canadian jurisdictions have human rights legislation prohibiting discrimination in employment based on certain prohibited grounds, such as race, national or ethnic origin, colour, religion or creed, marital status, disability, sex, sexual orientation and age. Such legislation applies to prevent employees from being terminated on the basis of a statutorily prohibited ground. Various defences may be available depending upon the legislation and the context of the discrimination claim.
All Canadian jurisdictions address and prohibit harassment and violence in the workplace through a combination of human rights legislation, employment standards legislation and/or health and safety legislation.
Under the human rights laws applicable in every jurisdiction, harassment related to any statutorily prohibited ground of discrimination is prohibited at all stages of the employment relationship, including the context of termination of employment. Certain jurisdictions additionally protect against specific types of harassment. For example, ’psychological harassment’ is prohibited under the Québec Act Respecting Labour Standards, and ‘sexual harassment’ is prohibited under the Ontario Human Rights Code.
The health and safety legislation in most jurisdictions specifically addresses harassment and/or violence in the workplace, and typically requires employers to prepare workplace violence and/or harassment policies, including complaint/incident and investigation procedures. Such legislation prohibits reprisals against employees who initiate a harassment complaint, or otherwise seek to enforce their rights under the applicable legislation.
A worker who files a complaint or starts legal proceedings in relation to a breach of the general anti-discrimination law, the law on equal treatment between men and women or the anti-racism law, is protected as of the day when he/she files the complaint or starts the legal proceedings. The protection is lifted, respectively, 12 months after the filing of the complaint or three months after a final decision is rendered by a court.
Under such protection, no detrimental measure (i.e. a termination of employment, a unilateral modification of the employment conditions or a detrimental measure taken after the termination of employment) can be taken against the worker. Consequently, the employment cannot be terminated for a reason related to the complaint or the proceedings. However, it remains possible to terminate the employment (i) for serious cause or (ii) for any reason whatsoever, which is not related to the complaint or the proceedings. If the employment is terminated, the burden of proof will fall on the employer, who will have to demonstrate that the dismissal is not related to the complaint or the proceedings.
If the employment is terminated during the protection period, the employee may request his reinstatement in the company. In case of reinstatement, the worker will be paid his/her normal remuneration (including social security contributions) for the period between the dismissal and the reinstatement. If the employer refuses the reinstatement and a court confirms that the detrimental measure is in breach of the prohibition, the employer will be liable to pay (i) a severance allowance and (ii) damages equal to six months’ remuneration (or damages covering the actual loss suffered, the extent of which must be proved by the worker). Under specific circumstances (i.e. if the worker is proven right), the worker will not to request his/her reintegration and will be entitled to the payment of the severance allowance and damages as mentioned above. The same protection apply to the workers who can testify about the discrimination-related facts.
Protection against dismissal is also applicable to a worker who files a complaint/starts legal proceedings in relation to a breach of the law on equal remuneration between men and women.
Furthermore, any contractual provision in breach of the general anti-discrimination law, the law on equal treatment between men and women or the anti-racism law, is to be considered null and void. The same applies to contractual clauses whereby the protection granted by these laws is waived.
A worker who faces a breach of the abovementioned laws can also start an injunction procedure in order to have a judge order the cessation of the allegedly discriminatory measures.
A worker who files a formal request for psychosocial intervention, a complaint or claim for harassment, violence or unwanted sexual behaviour, also benefits from a similar protection against dismissal. The protection applies to workers who can testify about the alleged facts. It is also possible for the worker to start an injunction procedure.
In the event of a discriminatory dismissal the employees will be entitled to reinstatement and to the payment of all remuneration lost during the period from dismissal until reinstatement deducting the salary the employee earned whether employed in a different workplace (the so-called aliunde perceptum), subject to a minimum of five months of salary. The employee will have the option to forego the right to be reinstated in lieu of payment of an indemnity equal to fifteen months of salary. The same consequences would apply in the event the employee is dismissed as a consequence to his/her reaction to harassment.
Employees are protected against any dismissal or any other adverse treatment as a reaction to a complaint or to legal proceedings aimed at forcing compliance with the principles of equal treatment and non-discrimination.
Generally, the employer does not need to obtain permission by a third party. However, if a person falls under maternity protection or is taking parental leave they can only be dismissed if the competent state authority agrees. Also, with respect to persons with disabilities dismissals require the prior consent of the competent authority.
Moreover, the Employment Agency needs to be notified before a mass layoff (c.f answer to question 2).
As mentioned above, because there is no special remedy or damages available to an employee who suffered discrimination or harassment, the consequence would be the statutory severance under the FLL for wrongful termination or unjustified dismissal. Such severance is a fixed formula comprised of the following elements:
- Payment of proportional parts of those labour benefits accrued on the date of the termination (i.e., Christmas bonus, vacation, vacation premium);
- Payment of an amount equivalent to 12 days per year of rendered services, capped at twice the daily minimum wage ($80.04 Mexican pesos) for the geographic area, as seniority premium;
- Payment of an amount equal to 3 months’ salary, paid with consolidated salary (consolidated salary is the base salary plus the proportional part of the accrued benefits) as Constitutional Severance; and
- Payment of an amount equivalent to 20 days of consolidated salary per full year of rendered services (if the employee requested reinstatement). Another possible consequence is that an employee may file a claim before the Labour Ministry, which would order an inspection visit to the employer work site. If the inspector is able to find evidence supporting an act of discrimination or harassment, the employer may be liable for a fine between 250 and 5000 times the Measure and Update Unit (“UMA” by its name in Spanish). The UMA is currently MXP 75.49.
In theory, there is a possibility for an employee seeking redress for acts of discrimination or harassment before a civil court. The individual, based on the Civil Code of the state where the conduct took place, may ask for damages (including reputational damages), having to show the relation between the wrongful conduct and the suffering it caused, and being able to quantify the amount of alleged damages. In practice, this action as rarely pursued in Mexico.
Employers have a general obligation not to discriminate. This also applies to termination of employment, which shall not be done on discriminative grounds.
Instead of defining the various acceptable reasons for dismissal, the Finnish law recites the grounds that at least cannot be considered acceptable. It is explicitly stated that the grounds for termination shall not be discriminative. Discrimination based on age, origin, race, colour, national or ethnic origin, nationality, language, religion, belief, sexual orientation, conviction, opinion, political or trade union activity or similar, health status, disability, family status or family ties, genetics, pregnancy or childbirth, gender identity, gender expression is strictly prohibited. Also harassment is strictly prohibited by Finnish law.
Finnish law applies a reverse burden of proof in discrimination matters. When an employee who considers he/she has been a victim of discrimination presents information from which it may be presumed that discrimination has occurred, the employer must demonstrate the opposite. However, the reverse burden of proof does not apply to criminal cases.