What protection from discrimination or harassment are workers entitled to in respect of the termination of employment?

Employment & Labour Law (3rd edition)

Argentina Small Flag Argentina

The protection in case of termination based on discrimination is not clearly defined in our law. However, there are two specific protected categories providing additional penalties: pregnant women, and recently married individuals. In such cases, employer has the burden of proving that the termination does not have grounds on the fact of maternity or recent marriage.

China Small Flag China

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:

  • Establishes discriminatory restrictions for the rural workers; or
  • refuses to hire females or heightens the recruiting standards for females on the basis of gender; or
  • adds any contents in the labour contract restricting female workers from getting married or bearing children; or
  • establishes discrimination against the disabled; or
  • 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.

Ecuador Small Flag Ecuador

The Labor Code especially protects union leaders and women in the condition associated with motherhood. If they are dismissed without a cause and the Visto Bueno procedure, they can present a judiciary summary procedure claim for such dismissal to be declared ineffective. If the employee claim is favorable to their interests the judge can order the reinstatement of the employee to the job. The employer's breach of this order has criminal sanctions. If the employee prefers the agreement termination, an economic compensation equivalent to twelve remunerations will be granted in addition to the general indemnifications provided for in the dismissal without cause.

In any case of termination of the agreement for discrimination against other employees without the qualities stated above, there will be an equal additional economic compensation of twelve remunerations.

Labor harassment in Ecuador is prohibited by law and, in case it is committed, it may be considered as a fair cause to end the employment relationship on behalf of the employee of employer. In this case the procedure detailed in question 7 will be mandatory for the employer.

Employers have the obligation to incorporate harassment prevention programs and non-compliance with this obligation has administrative penalties imposed by the Labor Ministry.

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

First, the principle of equal treatment prohibits the employer from treating comparable employees differently. Employees in Germany are protected against discrimination under the General Act on Equal Treatment which is based on EU Directives. The General Act on Equal Treatment expressly prohibits discrimination based on race or ethnic origin, gender, religion or belief, disability, age or sexual orientation.

Chile Small Flag Chile

Workers may file a claim before the Labour Authority and/or Labour Court seeking the declaration of a discriminatory or harassment dismissal, and the payment of the severances and penalties which will depend on the ground of termination invoked.

No authorization is needed from third parties to conduct termination, although the employer must inform the dismissal to the Labour Authority.

Indonesia Small Flag Indonesia

With regards to discrimination, the Labour Law provides protection to employees by regulating that an employer must not discriminate an employee including in the context of termination.

Italy Small Flag Italy

Under Italian law, those discriminations which rely on 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 are prohibited, so that dismissals grounding upon any out of the above reasons shall qualify as null and void.

Likewise, are to be considered as being null and void those dismissals which rely on retaliation against those employees who had been harassed and then have reported this harassment having taken place.

Due to the invalidity of such dismissals, affected employees are entitled to be reinstated in their previous position (or, at their own choice, to be granted with an indemnity amounting to 15 months of salary) as well as to be paid with 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

As a general principle, all employees are to be treated fairly with mutual trust and respect. Employees who are unfairly dismissed due to discrimination or victimisation have an avenue for redress through a wrongful dismissal claim under Section 20 of the Industrial Relations Act 1967 (“IRA”).

Specific provisions against discrimination are also set out in the following:

  • Prohibition against discrimination of an employee due to involvement with a trade union. [Section 5(1) of the IRA]
  • Prohibition against termination of employment of female employees during maternity leave unless the termination is due to closure of business. [Part IX of the Employment Act 1955 (“EA”)]
  • Prohibition against discrimination of a local employee in favour of a foreign employee and vice versa, in respect of the terms and conditions of his employment. [Section 60L of the EA]

Meanwhile, protection against sexual harassment is also codified under Part XVA of the EA which imposes a duty on employers to investigate into complaints of sexual harassment at the workplace within 30 days; unless an inquiry had been done previously and the complaint was found not to be proven or the complaint is frivolous, vexatious or mala fide.

If the sexual harassment is proven, the employer shall impose the necessary punishment on the employee who was found guilty. This may include termination of employment without notice, demotion or the imposition of any lesser punishment as deemed fit. If the perpetrator is not an employee, the employer shall make recommendations for the perpetrator to be brought before an appropriate disciplinary authority.

Failure to investigate sexual harassment complaints constitutes an offence and the employer may be liable to a fine of not more than RM10,000.

Norway Small Flag Norway

The Norwegian Equality and Anti-Discrimination Act stipulates prohibitions against discrimination based on gender, pregnancy, leave of absence in connection with the adoption of a child, care responsibilities, ethnicity, religion, beliefs, sexual orientation, gender identity or gender expression.

According to the WEA chapter 13, employees are also protected against discrimination based on political views, membership of a trade union or age.

Discrimination is prohibited at all stages - during the recruitment, course of employment and when terminating the employment.

Philippines Small Flag Philippines

The Labor Code ensures equal work opportunities, regardless of sex, race or creed. It also makes unlawful for an employer to discriminate against any person with respect of the terms and conditions of employment on account of his age.

Various special laws also provide for the protection of the rights of women, children, persons with disabilities, indigenous people, and other employees who need special protection with regard to discrimination and termination of employment. These include:

  • The Magna Carta of Women and Women in Development and Nation Building Act prohibit discrimination of women on account of their gender, and makes it unlawful for the employer to discriminate or otherwise prejudice a female employee by reason of her marriage or on account of her pregnancy.
  • The Responsible Parenthood and Reproductive Health Act protects employees’ rights to reproductive health and family planning and prohibits employers to impose conditions pertaining to such as a condition for continued employment.
  • The Anti-Sexual Harassment Act protects employees against persons in authority who demand, request or otherwise require a sexual favor as a condition for the hiring or continued employment of the employee, or in granting the employee favorable compensation, terms, conditions, promotions, or privileges.
  • The Magna Carta for Disabled Persons prohibits discrimination of disabled persons by reason of disability.
  • The Anti-Age Discrimination in Employment Act prohibits employers from imposing age limitations in employment, forcibly laying off employees because of old age, and imposing early retirement due to old age.
  • The Philippine AIDS Prevention and Control Act prohibits termination, based on the actual, perceived, or suspected HIV status of an individual.
  • The Indigenous People’s Rights Act prohibits an employer to discriminate against indigenous people with respect to the terms and conditions of employment.
  • The Solo Parents’ Welfare Act prohibits discrimination against any solo parent.

United States Small Flag United States

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.

Brazil Small Flag Brazil

Mattos: The Brazilian laws forbid any discriminatory and restrictive practice for the purpose of accessing or maintaining the employment relationship on the basis of sex, origin, national origin, race, marital status, family status, disability, professional rehabilitation, age, among others (except for the hypotheses of children and teenagers protection).

In addition, the Constitution and employment law provides for the protection of (i) equal pay for equal work (regardless of the race, sex, national origin, disability, etc.); and (ii) women work (promotion of equal terms and conditions in job offers, promotions, and seniority plans; pregnancy protection; protection against searches, and other related matters). The case law also protects (iii) the employee with a serious disease (e.g., cancer, HIV).

Thailand Small Flag Thailand

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.

Turkey Small Flag Turkey

Under the equality provisions of the TLC, the employee may claim that (s)he is discriminated on the grounds that (s)he is not equally treated in terms of salary, compensation and other benefits when compared to other employees with similar conditions, and request the following:

  • discrimination compensation up to his/her 4 months’ salary, and
  • the rights and receivables (s)he has been divested of, such as the payment of any benefit (salary, bonus, allowances etc.) the employer provides to other employees with similar conditions.

Furthermore, Turkish Code of Obligations imposes an obligation on employers to protect the personality of their employees. According to this, employers are required to take necessary measures to ensure that the employees are not exposed to psychological and sexual abuse in the workplace. If an employee proves that (s)he has been exposed to harassment at the workplace (either by the employer itself or by other employees), the employer would be required to compensate the claimed material and moral damages (if any), unless the employer proves there is no negligence attributable to it.

As per the case law, harassment is deemed to occur, if an employee is specifically targeted, systematically and consistently abused for a certain period of time. However, in practice, it is hard to put forth and/or relate the losses with mental harassment and a moral compensation is not awarded for high amounts. When the precedents are referred, it is less than a month (and even half month) salary of the employee in most of the cases (this may be different depending on the degree of the abuse, though).

For both cases, in addition to above mentioned compensation and claims, such behaviour of the employer may cause a ground for termination on justified grounds by the employee. Then, the employee will be entitled to a severance pay and other employee receivables such as annual leave pay, overtime pay etc.

Finally, having pursued such claims before the courts and have not received any compensation, discriminated employees may apply to Turkish Institution of Human Rights and Equality (“Institution”). Upon an application, the Institution offers a settlement, if deems necessary, by means of a compensation or an injunction imposed on the employer for the benefit of the employee in an effort to discard the discriminative acts.

In cases where there is more than one employee at the same position and only one or some of them will be made redundant or when a termination decision is made over an incident that involves more than one employee, the employer should implement such decision in a consistent, objective and non-arbitrary manner. Under the equality provisions of TLC, the employer is required not only to treat its employees equitably during the course of employment but even while terminating their employment contracts. That is why, the High Court declares the termination that is found to be in breach of the duty of equality of the employer as void in reinstatement cases.

Switzerland Small Flag Switzerland

According to the Swiss Equal Treatment Act, gender discrimination is explicitly prohibited in relation to recruiting, work assignments, working conditions, salary policy, continuing education, promoting and dismissing employees. Any form of sexual harassment is also prohibited.

Employees who have suffered gender discrimination or harassment may file an internal discrimination complaint with a supervisor, initiate proceedings before a conciliation body or file an action before court. For the duration of these procedures and six months thereafter, protection against dismissal applies. This means that a dismissal notified by the employer during this period, without good grounds, may be challenged by the employee (see question 12).

In addition, protection against abusive dismissals according to Article 336 CO applies in the event of a dismissal based on discriminatory grounds (such as gender, religion, race or sexual orientation).

More generally, the following reasons for dismissals are considered abusive (non-exhaustive list):

  • a quality inherent to the personality of the employee, such as age, race, sex, origin or other;
  • the employee exercising a constitutional right, such as exercising a political right or pursuing religious activities;
  • notice given by the employer in order to prevent claims based on the employment contract from arising;
  • the employee asserting claims based on the employment contract in good faith;
  • the employee performing compulsory military or civil defence services;
  • the employee being or refusing to become a member of an employee association, or the employee lawfully pursuing a union activity;
  • the employee being elected as an employee representative, unless the employer can justify the notice based on valid reasons;
  • notice given by the employer in violation of the consultation process in connection with a collective dismissal.

In any of these cases, the termination can be challenged by the employee (see question 12).

Sweden Small Flag Sweden

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.

New Zealand Small Flag New Zealand

The Employment Relations Act 2000 and the Human Rights Act 1993 prohibit discrimination on the basis of:

  • age;
  • race or colour;
  • ethnicity or national origins;
  • sex (including pregnancy or childbirth);
  • sexual orientation;
  • disability;
  • religious or ethical belief;
  • marital or family status;
  • employment status;
  • political opinion;
  • an employee’s union membership status or 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.

Sexual harassment, adverse treatment in employment of people affected by domestic violence, and racial harassment are prohibited by the Human Rights Act 1993.

Luxembourg Small Flag Luxembourg

An employee whose employment contract is terminated because s/he refused to be the victim of (or was a witness to) sexual harassment may request that the court declares such termination void.

Where the termination is void by law, the courts must order that the employee dismissed is reinstated if s/he so wishes.

A similar legal provision (and protection) applies for victims of discrimination based on religion or beliefs, disability, age, sexual orientation, nationality, race or ethnie (and their witnesses).

Romania Small Flag Romania

Employers are generally obliged to observe a good-faith and non-discrimination principle in the employment relationship. Moreover, the law includes a general prohibition of dismissing any employee based on discriminatory grounds. Thus, employees cannot be dismissed for characteristics such as: age, disability; HIV status, language, non-contagious chronic disease, race, nationality, ethnicity, religion, belief, sex, sexual orientation, social status and underprivileged status.

Peru Small Flag Peru

In the cases in which there is evidence that the termination of employment is based on discrimination or harassment motives, said termination will be considered void and, therefore, the worker would be entitled to return to his or her workplace, jointly with the payment of all salaries and social benefits (mandatory and conventional) accrued during the time this person was considered dismissed.

The Netherlands Small Flag The Netherlands

The rules and provisions regarding equal treatment stretch to all phases of the employment contract, including the termination. A termination based or relying on discriminatory reasons (e.g. origin, gender, family status, sex, race, age, political orientation) or a termination applied pursuant to acts of harassment will be annulled by the court. The employee can be entitled to reinstatement or high damages due to a ‘serious imputable act’.

Austria Small Flag Austria

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.

Mexico Small Flag Mexico

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:

1. Payment of proportional parts of those labour benefits accrued on the date of the termination (i.e., Christmas bonus, vacation, vacation premium);

2. 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;

3. 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

4. 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.

United Kingdom Small Flag United Kingdom

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 (for example a rule or policy) 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 indirectly discriminatory.

With the exception of age, direct discrimination cannot be justified by an employer. It is possible to justify indirect discrimination if the applicable provision, criterion or practice 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 the other protected characteristics 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 whom an employer believes may do such things, is protected from suffering a detriment (including the termination of employment) as a result of such act.

Armenia Small Flag Armenia

Discrimination against employees is prohibited pursuant to the national legislation, as well as international treaties ratified by the RA. Discrimination on the grounds of sex, race, nationality, language, origin, citizenship, social status, religion, marital and family status, age, beliefs and opinions, membership to parties, trade unions or non-governmental organisations, and other circumstances not connected with the working skills of any employee, is prohibited.

South Korea Small Flag South Korea

Of the various protections from discrimination or harassment, the most pertinent protections may be as follows:

Under the LSA:

  1. An employer shall neither discriminate against employees on the basis of gender, nor take discriminatory treatment (including termination) in relation to terms and conditions of employment on the ground of nationality, religion, or social status.
  2. An employer may not terminate an employee during a period of suspension of work for medical treatment of an occupational injury or disease and within thirty (30) days immediately thereafter.
  3. An employer may not terminate a female employee during her maternity leave (as prescribed in the LSA) and for thirty (30) days immediately thereafter.
  4. An employer shall not terminate or treat an employee unfairly for report a violation of the employment and laws by the employer to the MOEL or a labor office inspector.
  5. An employer shall not terminate, or take any other disadvantageous measures against, an employee who has suffered from workplace harassment or who has reported an incident of workplace harassment. (Effective July 16, 2019)

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

  1. . No employer shall discriminate on the grounds of gender in age limit, retirement, and termination of his/her employee.
  2. No employer shall conclude an employment contract that stipulates marriage, pregnancy, or childbirth of female employees as grounds for retirement
  3. An employer shall not terminate, or take any other disadvantageous measures against, an employee who has suffered from sexual harassment on the job (in the workplace or from clients) or who has claimed that he/she has suffered from sexual harassment (in the workplace or from clients).
  4. No employer shall terminate, or take any other disadvantageous measure against, an employee on account of childcare leave, or dismiss the relevant employee during the period of childcare leave; provided that, this shall not apply where the employer is unable to continue his/her business. Following the end of the childcare leave, the employer must also reinstate the employee back to the same work as before the leave or any other work paying the same level of wages.
  5. No employer shall terminate, or take any disadvantageous measures against, an employee on the grounds of reduction of working hours for a period of childcare instead of the childcare leave. Following the end of the period of reduced working hours, the employer must also reinstate the employee back to the same work as before the leave or any other work paying the same level of wages.
  6. No employer shall terminate an employee, deteriorate his/her working conditions, or take any other disadvantageous measures against him/her on the grounds of taking a family care leave.

Ireland Small Flag Ireland

Employees who are dismissed in relation to discrimination or harassment on any of the nine grounds set out in response to question 1 above may bring a claim of discriminatory dismissal against their former employer.

Croatia Small Flag Croatia

An employer with 20 or more workers is obliged to appoint a person for dealing with complaints related to discrimination or harassment. The complaints have to be considered within 8 days and all appropriate measures for prevention must be undertaken. Otherwise, the worker is entitled to stop working until his protection is secured under the condition that the claim is filed with the competent court within 8 days. Workers are entitled to wage during the time they are not working for the above reasons.

In cases when the worker does not expect the employer to comply with his request for the protection of dignity, , he may file a claim against the employer directly to the court. The behaviour of other workers may also represent discrimination or harassment, and is considered to be a breach of employment obligations as such.

The Prevention of Discrimination Act provides protection from discrimination based on race, ethnicity or skin color, sex, language, faith, political or other views, national or social origin, financial status, syndicate membership, education, social position, age, health condition, disability, gender identity or sexual orientation.

Croatian labour law states that any direct or indirect discrimination in the area of labour and working conditions is prohibited, including the selection criteria and requirements for employment, advance in employment, professional guidance, education, training and retraining, in accordance with the LLA and special laws and regulations, such as the Prevention of Discrimination Act.

Bolivia Small Flag Bolivia

In Bolivia there is Law No. 045 of October 8, 2010 "Law Against Racism and All Forms of Discrimination". so the Bolivian worker is legally protected in this regard.

Regarding the termination of the work, because of discrimination or harassment, the worker could:

  • That the worker demands the reinstatement of labour.
  • That the worker demands the payment of all his social benefits, including the fine of the eviction, being able to accede before a labour judge in case of breach in the payment.

Monaco Small Flag Monaco

Employees are protected against discrimination under the International Covenant on Civil and Political Rights.

Any sanction taken against an employee in a context of harassment, sexual blackmail or violence is null and void.

The employer is required to take the necessary measures to terminate the facts above and appoint an officer responsible for collecting the reports of one of these facts.

Singapore Small Flag Singapore

The Tripartite Retrenchment Advisory states 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 the Advisory is non-binding, MOM will investigate complaints of discriminatory employment practices, including retrenchments that unfairly target older, re-employed or pregnant employees. If the complaints are substantiated, the employers will 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). Further, female employees who have served their employer for 3 months or more and who are dismissed without sufficient cause or on the ground of redundancy or restructuring would be statutorily entitled to all maternity leave payments 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).

Updated: June 24, 2019