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 (2nd Edition)
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.
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 awarded 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 for injury to feelings. This is compensation for non-financial loss and can range from £800 up to £42,000. In the most serious cases, an additional sum of aggravated damages may also be awarded. A further category of punitive or exemplary damages may be awarded in exceptional and rare circumstances.
An Employment Tribunal can make a declaration of the employer’s 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 to reduce the adverse effect on the claimant for the matters to which the Employment Tribunal proceedings relate. The scope of such recommendations is, however, narrow.
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 2015/16 it obtained 1,045 health and safety convictions, with fines totalling almost $10 million.
The penalty for discrimination in the context of termination depends on the law violated.
The penalty for discriminating against women under the Labor Code includes a fine of up to PhP10,000.00 or imprisonment of up to three years, or both.
A violation of the Reproductive Health Act may subject the employer to the penalty of a fine of up to PhP100,000.00 or imprisonment of up to six months, or both.
The penalty for discriminating against PWDs includes a fine of up to PhP200,000.00 or imprisonment of up to six years, or both, as well as the possible the cancellation or revocation of the business permit, permit to operate, franchise and other similar privileges granted to any business entity.
The penalty for discriminating due to age is a fine of up to PhP500,000.00, or imprisonment of up to two years, or both.
The penalty for discriminating against IPs include a fine of up to PhP500,000 or imprisonment of up to twelve years, or both.
However, the Solo Parents’ Welfare Act of 2000 provides no specific penalty for the violation thereof.
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 demand it.
An employer could face a discrimination claim for both the act of termination and any discriminatory treatment (including harassment) leading up to the act of termination. Compensation is the most common form of remedy and can be up to two years' gross remuneration for each claim.
If an employee has suffered harassment and suffers physical or mental injury as a result, he or she may choose to bring a personal injuries claim to the Irish High Court. Damages that can be awarded by the Court for such injury are not capped.
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.
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 for discrimination, and up to 2 years imprisonment and a fine of up to €30,000 for harassment).
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.
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 stemming from the commission of an act of ‘illegal termination’ pursuant to the relevant civil and criminal labour law.
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 complaint for harassment, violence or discrimination protects the employee from detrimental measures. If the employer cannot prove that the dismissal is not linked to the complaint, he will have to pay an indemnity of 6 months’ salary (or the real loss suffered).
Moreover, if the court considers that there was indeed harassment, violence or discrimination by the fault of the employer, the employee is entitled, on top of the protection indemnity, to an indemnity of 6 months, salary because of the harassment, violence or discrimination. The salary to be considered in case of harassment or violence is capped at 35.652,45 EUR per year (amount as from 1 January 2018, subject to annual indexation).
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 a limit of $50,000 to $300,000. These limits do not apply to awards of backpay, frontpay or attorney’s fees. The U.S. Congress recently enacted the Tax Cuts and Jobs Act which, inter alia, eliminates tax deduction corporations may take for “payments related to sexual harassment and sexual abuse”. In light of the recent #MeToo sexual harassment movement, this may signal future changes to harassment and discrimination related legislation and case law.
Abusive terminations pursuant 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 (see 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 (see art. 336b of the Swiss Code of Obligations and art. 9 of the Federal Act on Gender Equality). Only in specific cases of gender-discriminatory 'revenge terminations', the employee can also request a continued employment instead (see 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 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.
An employee who considers that he or she has been unlawfully discriminated against during employment (including where this culminates in the termination of employment) can either:
- Raise a personal grievance and resolve this via mediation, the Authority process or the Employment Court process; or
- Make a complaint to the Human Rights Commissioner (who will attempt to resolve the compliant by a confidential and free mediation service) or a complaint can be made to the Director of the office of Human Rights Proceedings in the Human Rights Review Tribunal.
The consequences for the employer can include reinstatement of the employee, an award for loss of earnings, compensation for loss of benefits and compensation for injury to feelings.
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.
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.
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.
In addition to any award that may be granted in favour of the worker by a court or Industrial Tribunal, the employer may also be subject to penalties and imprisonment prescribed under the relevant labour legislation. In case of a successful claim of the employee, the courts may set a termination order aside, and reinstate the employment of an employee whose services have been terminated.