What protection from discrimination or harassment are workers entitled to in respect of the termination of employment?
Employment & Labour Law (2nd Edition)
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.
Workers are protected from discrimination on the termination of employment (as well as during employment and the recruitment process) on the grounds of protected characteristics prescribed by the Equality Act 2010. These are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Discrimination can be direct, if the employer treats a worker less favourably than other workers on the grounds of a protected characteristic. It can also be indirect, where an employer applies a provision, criterion or practice equally to workers with and without protected characteristics, but the provision criterion or practice puts workers with a protected characteristic at a particular disadvantage compared to other workers. For example, a requirement that all workers are required to work full-time hours, is likely to put women who are most likely to be the main carer of children, at a disadvantage and may be discriminatory.
With the exception of age, direct discrimination cannot be justified by an employer. It is possible to justify indirect discrimination if it is a proportionate means of achieving a legitimate aim.
An employer will also be liable for discrimination if the employer fails to comply with its obligation to make reasonable adjustments for a worker with a disability.
Workers are protected from harassment of a sexual nature that is related to sex or gender reassignment. Harassment can also take the form of other unwanted conduct in relation to a protected characteristic which either violates the victim’s dignity or has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.
A worker who brings a claim under the Equality Act, or does anything in connection with the Act (for example, providing information or giving evidence), or who an employer believes may do such things, is protected from suffering a detriment (including the termination of employment) as a result of such act.
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 also 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.
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 complaint of harassment and/or violence, or otherwise seek to enforce their rights under the applicable legislation.
Philippine law accords protection to women, mothers, persons with disabilities (“PWDs”), the elderly, indigenous people (“IP”), single parents, and members of the LGBT community against discrimination, including in the context of termination.
The Labor Code prohibits discrimination against women on account of her sex. The Reproductive Health Act expressly declares that “pregnancy or the number of children shall not be a ground for non-hiring or termination from employment.”
The Magna Carta for Disabled Persons prohibits discrimination against a qualified PWD by reason of disability. It is illegal to dismiss the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity.
The Anti-Age Discrimination in Employment Act prohibits an employer from (1) forcibly laying off an employee because of old age; or (2) imposing early retirement on the basis of such employee's age.
The Indigenous People’s Rights Act (“IPRA”) makes it unlawful for an employer to discriminate against an IP with respect to the terms and conditions of employment.
The Solo Parents’ Welfare Act of 2000 also provides that “[n]o employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status.”
Jurisprudence has also made clear that, based on the Constitutional and statutory provision on equal opportunity for all regardless of sex, discrimination based on sexual orientation, including in the context of termination, is prohibited.
The Employment (Equal Opportunities) Law-1988 prohibits any discrimination in respect of employment (including termination of employment) which is based on the following grounds: gender; sexual tendencies; marital status; pregnancy, the undergoing of fertility or in vitro fertility treatment; parenthood; age; race; religion; nationality; country of origin; place of residence; views; party affiliation; the performance of reserve duty, or the duration or frequency of such reserve duty; and employees who are employed by manpower agencies. According to case law, the above is not a "closed" list. This law also provides that an employer shall not prejudice an employee where the source of such prejudice is sexual harassment of the employee or the applicant for employment, committed by the employer, by an appointee on its behalf or by another employee.
According to the Equal Rights of Disabled People Law-1998, discrimination in the workplace on the basis of disability is prohibited, where a person with a disability is defined as a person with a permanent or temporary physical, mental or intellectual (including a cognitive) impairment, due to which his or her functions are substantially restricted in one or more main spheres of life.
The Protection of Employees (Exposure of Offences of Unethical Conduct and Improper Administration) Law -1997 stipulates that an employer must not harm an employee’s terms of employment and must not dismiss an employee who submitted a complaint against the employer or against any other employee of that employer, or who assisted another employee in submitting a complaint as aforesaid.
In addition to the above, according to the Wage Protection Law – 1958 an employer is not allowed to terminate an employee's employment because of a lawsuit filed by said employee for late payment of salary or delayed compensation for such late payment.
According to the Swedish Discrimination Act, it is unlawful to discriminate against, both directly and indirectly, job applicants 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.
Irish equality legislation provides protection to employees from discrimination. There are nine protected discriminatory grounds, namely: age, gender, religious belief, civil status, sexual orientation, family status, disability, race and membership of the Traveller community. Employees are also protected from any harassment linked to those discriminatory grounds.
A termination by reason of any one of the nine discriminatory grounds will be considered unfair. The compensatory remedy available under statute is up to two years' gross remuneration. This compensation is not limited to actual financial loss on the part of the employee, unlike a compensatory award made pursuant to the unfair dismissals legislation.
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 (cf. answer to question 2).
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.
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.
According to the existing laws and regulations of China, discrimination towards workers is forbidden in certain cases. More specifically, the employees can bring a claim to 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 a worker who is a carrier of an infectious disease or hepatitis, 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 committed.
As to harassment, this concept does not exist in the current national laws and regulations of the PRC. However, similar concepts exist in civil and criminal law. Whether the workers are entitled to protection from harassment during their employment depends on many factors, such as whether it violates any stipulations from relevant law or internal regulations, providing that the employer has put such regulations in place.
The employee who files a complaint for discrimination is protected against dismissal or prejudicial measures. The protection begins as from the date of the complaint until 12 months hereafter. In case of legal proceedings, the employee is protected until a final decision is rendered by a court. If the employer cannot prove that the measure is not linked to the complaint, the employee is entitled to an indemnity of 6 months’ remuneration or the indemnification of the real loss suffered.
Similar rules apply in case of complaint or legal proceedings related to harassment or violence at work. The particularity is that the complaint for harassment or violence must be filed by the prevention advisor specialised in psychosocial risks of the company. In case of discrimination, a complaint to the hierarchical line is sufficient. If the internal procedure for psychosocial risks is not a compliant, a complaint introduced by the social inspectorate or the police will also protect the employee. Even if the prevention advisor considers, after its investigation, that there neither harassment nor violence, the employee is still protected during the period of 12 months or the legal proceedings.
When terminating the employment relationship with protected employees, special procedures have to be observed. Dismissal of a protected member of the workforce typically requires prior consent from a court. The dismissal of a registered disabled person is only valid provided the employer obtains a prior consent from the Disability Employees Committee chaired by the Federal Office for Social Affairs and Disabled Persons. When breaching this requirement, dismissal is null and void and the employer could be facing legal consequences, company reputation, reduced productivity, penalties, discrimination complaints and/or lawsuits.
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.
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 employment 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 resolve 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 due to their status and against any termination while performing these services (potentially also 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 delivery.
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:
(i) 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.
(ii) 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:
(i) The non-binding Fair Consideration Framework and Tripartite Guidelines on Fair Employment Practices contain recommendations intended to prevent discrimination at the workplace.
(ii) 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.
(iii) 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”.
(iv) 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).
The Employment Relations Act 2000 and the Human Rights Act 1993 prohibit discrimination on the basis of:
- race or colour;
- ethnicity or national origins;
- sex (including pregnancy or childbirth);
- sexual orientation;
- religious or ethical belief;
- marital or family status;
- employment status;
- political opinion; and
- involvement in union activities, including claiming or helping others to claim a benefit under an employment agreement, or taking or intending to take employment relations education leave.
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 ($88.36 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 80.60.
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.
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.
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 is accepted by Courts, the dismissal will be declared as null and void, which consequence would be 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 fundamental rights have been violated and 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.
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.
The Constitution of India 1950 (“Constitution”) guarantees equality before law and prohibits discrimination of citizens on grounds of race, religion, caste, sex or place of birth. Such protection can be enforced against the state and not private sector establishments.
The ID Act categorises various acts/ instances (in case of termination of employment) which may constitute an unfair labour practice. Such acts may include the following:
- threatening workmen with discharge or dismissal, if they join a trade union;
- discharging or punishing a workman, because he is urged other workmen to join or organise a trade union;
- discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed to be an illegal strike under the ID Act);
- discharging or dismissing workmen
- by way of victimisation;
- not in good faith, but in the colourable exercise of the employer’s rights;
- for patently false reasons;
- in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste.
- to discharge or discriminate against any workman for filing charges or testifying against an employer in any enquiry or proceeding relating to any industrial dispute.
An employer shall not commit any unfair labour practice and if the employer does so, such employer shall be punishable with imprisonment and / or fine for committing an unfair labour practice. The ID Act also states that any dispute or difference between the workman and the employer, arising out of the termination of employment, shall be deemed to be an industrial dispute and any such workman may make an application to the Labour Court or the Industrial Tribunal for the adjudication of the dispute.
As per the Maternity Benefit Act 1961, it is also unlawful for an employer to discharge or dismiss a woman employee on account of being on maternity leave or to issue a notice of discharge or dismissal expiring during the period of maternity leave.