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 (3rd edition)

Argentina Small Flag Argentina

On top of the two specific statutory protected categories, employees who have allegedly been terminated based on discrimination may claim to be reinstated; claim unpaid salary; seek additional compensation for pain and suffering; or claim for a constructive dismissal.

China Small Flag China

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 law.

Ecuador Small Flag Ecuador

In this case the former employee may present a judicial claim against the employer in order to obtain the general dismissal without a cause indemnification plus the additional economic compensation of twelve remunerations. Besides this economic sanction, there may be other criminal or civil responsibilities and consequences for the employer.

France Small Flag France

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).

Germany Small Flag Germany

Legal remedies under the General Act on Equal Treatment include the right to withhold performance (only in cases of harassment or sexual harassment), damages and compensation (up to three monthly salaries).

The termination of employment is not automatically void if it was based on discriminatory grounds. However, discriminatory termination decisions are usually also not “socially justified” and therefore breach the Protection Against Unfair Dismissal Act.

Chile Small Flag Chile

In case of labour lawsuit for violation of fundamental rights and discriminatory termination could be exposed to the payment of:

  • Compensation in lieu of prior notice;
  • severance;
  • surcharge of severance per time of services varying from 30% to 100% depending on the dismissal cause;
  • an additional severance equal to 6-11 monthly remunerations (uncapped);
  • pay damages including pain and suffering;
  • pay administrative fines;
  • be barred from entering into contracts with the State of Chile for a 2 years period.

Indonesia Small Flag Indonesia

The potential consequences for an employer that carries out a discrimination in the work place would be the issuance of an administrative sanction or potential claims at the Labour Court by the discriminated employees. Administrative sanctions under the Labour Law can be in the form of:

  • verbal warning;
  • written warning;
  • limitation of business activities;
  • temporary halt of business activities;
  • revocation of licenses.

Italy Small Flag Italy

Under Italian law, whenever the dismissal is ascertained to be null and void as relying on discriminatory reasons (which include employees' political views, religious beliefs, race, nationality, citizenship, language, gender, disability status, age, sexual orientation, personal opinions, affiliation to the trade unions and/or participation in a strike) or on retaliation against those employees who had been harassed and then have reported this harassment having taken place, the employer may be ordered by the Labour Court to:

  • reinstate affected employees in their previous position or, at their own choice, grant them with an indemnity amounting to 15 months of salary; and, in addition,
  • pay to the relevant employees an indemnity amounting to those salaries which would have been accrued over the period as from the dismissal date until the date of actual reinstatement (a minimum floor of 5 months of salary is provided for).

Malaysia Small Flag Malaysia

If the employee is able to prove that the decision to terminate his employment was actuated with bad faith and as a result of discriminatory actions by the employer, the employer would be liable for wrongful dismissal. Meanwhile, deliberate acts of harassment by the employer which drove the employee out of employment amounts to constructive dismissal, if proven.

If the employee succeeds in his claims for wrongful dismissal or constructive dismissal, the primary remedy available to him is reinstatement together with payment of backwages (capped at 24 months’ salary for confirmed employees). If the Industrial Court decides that reinstatement is not expedient, compensation in lieu of reinstatement at the rate of 1 month’s salary for every completed year of service will be awarded in addition to backwages (not exceeding 24 months’ salary).

Probationers are not entitled to reinstatement and their remedy will be limited to an award of backwages capped at 12 months’ salary.

Fixed term employees are only entitled to their salary for the balance duration of their fixed term contract unless they fall within the ambit of the Minimum Retirement Age Act 2012.

Norway Small Flag Norway

The dismissal may be found invalid. Anyone that has been discriminated against may claim redress and compensation regardless of whether the employer can be blamed for the discrimination. The employee may also be entitled to non-pecuniary damages.

Philippines Small Flag Philippines

Penalties are provided under the Labor Code or the special law violated, which include the imposition of a fine of up to Php500,000, or imprisonment of up to six years, or both, at the discretion of the court.

United States Small Flag United States

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.

Brazil Small Flag Brazil

Mattos: The termination of the employment relationship by a discriminatory act subjects the employer to the payment of damages compensation (pain and suffering); further, the law permits the employee to claim:

A. Reinstatement and backpay for the applicable entire period; or
B. Backpay in double for the entire period.

In the context of employment termination, if the employer harasses the employee, the remedies provided by law are damages compensation (pain and suffering), and constructive dismissal claim.

Depending on the latitude and context of the discrimination or harassment practice, the labor and employment authorities may investigate the employer and impose additional penalties. The Labor Prosecution Office can also file a public civil action claiming (i) the compliance with the law, (ii) additional obligations to cure the damage done, and (iii) the payment of punitive damages. Depending on the case, such discrimination may constitute a criminal offense and affect the employer's reputation.

Thailand Small Flag Thailand

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.

Turkey Small Flag Turkey

The general principles stated in the answer to the Question 11 above, are also applicable in the context of termination of the employment. If the employment contract is terminated in breach of the employer’s duty to act equally or the employee suffered from harassment, the employee shall be entitled to ask for the compensations in Question 11. Along with these claims, the employee shall then initiate a reinstatement claim before the courts as in such cases, the High Court’s practice is to declare the termination void (See Question 8).

Moreover, an administrative fine may be imposed to the employer, upon a complaint to be raised by the employee who was discriminated, due to breach of equality provisions. The amount of the fine is around TRY 219 per employee.

Switzerland Small Flag Switzerland

As set forth in question 11, termination based on discriminatory grounds is deemed abusive. In the event of an abusive termination, the employee willing to seek compensation must oppose to the termination in writing during the notice period and file a claim before a court within 180 days from the termination date. The maximal compensation amounts to the equivalent of the employee's legal and contractual entitlements for up to six months.

Abusive dismissals are valid, which means that employees cannot require to be reinstated in their position.

Exceptionally, if during or within the six months following the filing by the employee of an internal discrimination complaint with a supervisor, the initiation of proceedings before a conciliation body or the filing of an action before a court, the employer terminates the employment relationship without good grounds, the employee may seek provisional reinstatement for the duration of the proceedings (in lieu of claiming compensation). In such case, if the employee's claim is upheld on the merits, the termination is cancelled and the employment relationship continues as if termination by the employer never occurred.

Employees who suffer discrimination or harassment in the context of the termination of their employment agreement may also seek damages, including moral prejudice, based on the violation of their personality rights.

In addition, in the event of discrimination or harassment, an employer may be held liable for failing their duty to protect the employee against the behaviour of their colleagues.

Sweden Small Flag Sweden

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.

New Zealand Small Flag New Zealand

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 (or a combination of any of those remedies).

Luxembourg Small Flag Luxembourg

A collective action may be triggered the unions in specific instances.

If the employee resigned or was dismissed as victim or witness of sexual harassment, he may claim damages in court (and the payment of the notice period and severance pay applicable, if any).

The court must also order that the employer reimburses the local or foreign administration that paid the employee unemployment benefits following that unfair dismissal (or justified resignation).

Romania Small Flag Romania

Firstly, it may give rise to unlawful dismissal claims in employment courts. In addition, employees may also complain before the National Council for Combating Discrimination - NCCD (an autonomous state authority responsible for enforcing the anti-discrimination laws). If ever they ascertain that the employer issued a termination decision on discriminatory grounds, then such employer may pay administrative fines and be required to publish NCCD's decision in media.

Also, the risk of a criminal complaint for issuing a dismissal decision in breach of the law cannot be excluded.

Peru Small Flag Peru

The employee could file a lawsuit against the employer claiming the annulment of his or her dismissal and requesting the rights mentioned in the preceding answer (reinstatement at work and accrued social benefits).

Please note that the discrimination criteria is also applicable to HVI patients and/or people with disabilities.

Japan Small Flag Japan

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.

The Netherlands Small Flag The Netherlands

See question 11.

Austria Small Flag Austria

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.

Mexico Small Flag Mexico

N/A

United Kingdom Small Flag United Kingdom

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 which can be up to £42,900 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.

Armenia Small Flag Armenia

The employees can enforce their violated rights both through negotiations with the employer and judicially. The negotiations can be conducted both before the initiation of claim in court and during the proceedings. Thus, the parties can resolve disagreements amicably.

Judicial enforcement of their rights violated due to discrimination. If the labour contract has been dissolved due to discrimination the employee can be re-employed and paid for the period from dissolution of the contract to the moment of re-employment.

South Korea Small Flag South Korea

If an employee is terminated in violation of the provisions outlined in Question 1, the termination will be held invalid. The available remedies for the employee are reinstatement and back-pay. Please refer to Question 8 for more information on consequences of invalid terminations).

Please refer to the corresponding protection in Question 11 above.

Under the LSA:

  1. Administrative fine not exceeding KRW 5 million (approx. USD 5,000);
  2. Up to five (5) years’ imprisonment or a criminal fine not exceeding KRW 50 million* (approx. USD 50,000);
  3. Up to five (5) years’ imprisonment or a criminal fine not exceeding KRW 50 million* (approx. USD 50,000);
  4. Up to two (2) years’ imprisonment or a criminal fine not exceeding KRW 20 million* (approx. USD 20,000);
  5. Up to three (3) years’ imprisonment or a criminal fine not exceeding KRW 30 million** (approx. USD 30,000).

*Effective May 29, 2018
**Effective July 16, 2019

Under the Equal Employment Opportunity and Work-Family Balance Assistance Act:

  1. Up to five (5) years’ imprisonment or a criminal fine not exceeding KRW 30 million (approx. USD 30,000);
  2. Up to five (5) years’ imprisonment or a criminal fine not exceeding KRW 30 million (approx. USD 30,000);
  3. Regarding sexual harassment within the workplace, up to three (3) years’ imprisonment or a criminal fine not exceeding KRW 20 million (approx. USD 20,000); Regarding sexual harassment from clients, up to KRW 5 million (approx. USD 5,000) as an administrative fine;
  4. Up to three (3) years’ imprisonment or a criminal fine not exceeding KRW 20 million (approx. USD 20,000);
  5. Up to three (3) years’ imprisonment or a criminal fine not exceeding KRW 20 million (approx. USD 20,000);
  6. Up to three (3) years’ imprisonment or a criminal fine not exceeding KRW 20 million (approx. USD 20,000).

Ireland Small Flag Ireland

If they are successful in their claim, an employee who has been dismissed in relation to discrimination or harassment any of the nine grounds may be awarded compensation, which is generally subject to a maximum of two years' gross remuneration, re-engagement or re-instatement. There is no obligation on the former employee to mitigate their loss, as compensation is not assessed on loss of earnings. There is also no minimum service requirement for discriminatory dismissal claims.

Croatia Small Flag Croatia

Victims of discrimination are entitled to reinstatement and damage compensation from the employer.

When the court finds that a termination was not lawful, the affected worker might be reinstated. If the worker finds the reinstatement unacceptable, the date of termination of employment shall be determined and the worker may be awarded indemnity in an amount not less than three and not more than eight statutory or contracted average monthly salaries paid to the worker over the preceding three months.

Bolivia Small Flag Bolivia

In addition to those indicated in the answer to question 11, you could sue the employer in criminal matters.

Monaco Small Flag Monaco

The termination which occurs in a context of harassment or on the grounds of discrimination can be sanctioned as an unfair dismissal and entitle the employee to damages.

There is no obligation for the employer to reinstate the illegally dismissed employee.

Singapore Small Flag Singapore

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.

Updated: June 24, 2019