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  • Legal system, currency, language

    Constitutional and civil law with certain application of case law. Pesos (ARS). Spanish.

     

  • Corporate presence requirements & payroll set-up

    A foreign entity cannot hire employees in Argentina without a local corporate presence.

    Employers must pay social security contributions (23% or 27% on top of salaries, depending on the company's activity and revenues). Employees must contribute 17% of their salaries to the social security system (to be withheld by the employer and subject to certain taxable limits). Income tax is also withheld by the employer when paying employees' salaries (maximum rate 35%, subject to a progressive scale).

    Collective bargaining agreements for certain activities provide payments to be made by the employer and/or the unionized employees to the relevant unions.

  • Pre-hire checks

    Required

    • Pre-hire medical checks are required pursuant to resolutions issued by the Occupational Hazard Superintendence. If an employee does not complete a pre-hire medical check, the employee will be deemed to have begun work in optimal health; therefore, any injuries or diseases which subsequently arise will be deemed to have happened during the employment relationship.
    • Criminal record checks are required for foreign employees to obtain a work visa.

    Permissible

    Where criminal checks are not required for work visa purposes, they are only permissible (and often done in practice) for specific roles (eg, high-level managerial positions). Reference and educational checks are common and permissible, provided applicant consent is previously obtained.

  • Immigration

    Foreigners from non-Mercosur countries must obtain a temporary residence permit that permits them to enter and work in Argentina. Temporary residency is granted for a maximum period of up to 1 year, extendable for periods of equal or shorter terms. After 3 consecutive years as a temporary resident, foreign employees are entitled to apply for permanent residence.

    Citizens of Mercosur countries can apply for temporary Mercosur residence in Argentina without the need to present a work contract to the authorities. Temporary Mercosur residence is granted for 2 years and enables the individual to work and to apply for permanent residence on expiry of the temporary residence.

  • Hiring options

    Employee

    Full-time, part-time, fixed-term, indefinite-term employees or trainees.

    The following factors tend to indicate a labor relationship: availability to work for his/her employer; an employer who directs and subordinates the individual; an employer who instructs the services and duties required and creates the individual's schedule. Courts will also look at the extent to which the worker depends economically on the employer.

    Independent contractor

    Contractors should only be engaged where there is no labor relationship, that is, no direction/subordination or economic dependence.

    Misclassification, that is failure to register an individual as an employee, or submission of an incomplete or defective registration, carries the risk of severe sanctions and fines from the authorities (including amounts owed to social security for unpaid contributions). In addition, steep fines are levied upon statutory severance, including the doubling of the amount of severance owed to a (misclassified) employee.

    Agency worker

    Employers can engage workers through agencies. Agencies must be authorized by the authorities to function as an agency.

    The employer will be jointly and severally liable with the agency for all labor obligations arising from the worker's employment.

  • Employment contracts & policies

    Employment contracts

    There is no general, legal requirement to execute employment contracts in a specific form – meaning that they can be in writing, made orally, etc. unless a specific law or collective convention applies and indicates otherwise. Notwithstanding, employers are advised to enter into a written employment contract.

    Probationary periods

    The maximum permitted duration of a probationary period is 3 months. After the end of the 3 month period, the employee will turn into an indefinite term employee.

    Policies

    The law does not require employers to have specific policies in place. Notwithstanding, there are some policies that are strongly recommended to prevent potential conflict, such as bonus policies.

    Third-party approval

    Third-party approval is not required for employment contracts or any policies.

  • Language requirements

    No statutory language requirements; however, in practice, employment contracts are drafted in Spanish.

  • Minimum employment rights

    Employees entitled to minimum employment rights

    The Employment Contract Law No. 20,744 (LCL) governs the minimum employment rights in Argentina.

    Pursuant to Article 3º of the LCL, the law governs everything related to the validity, rights and obligations of the parties, provided the employment contract is performed in Argentina, even if the contract was entered into abroad.

    The LCL applies to "workers" which covers not only employees working under an employment contract, but also other individuals who personally perform "work" or provide services for the employer.

    For this purpose, "work" should be understood as any legitimate activity that is provided in favor of someone who has the power to direct that work, through the payment of remuneration for those activities and/or services rendered.

    The main factors that will tend to indicate that an individual is an employee rather than a worker or self-employed worker, are:

    • The employee must be available to work for his/her employer
    • The employer will direct and subordinate the employee, appoint the services and duties required and order the employee to comply with a schedule

    Courts will also weigh the extent to which the worker depends economically on the income obtained from the alleged employer.

    Working hours

    The general maximum number of hours is 8 hours per day or 48 hours per week for all employed workers in public or private enterprises. Each extra hour worked above these limits is deemed to be overtime.

    Notwithstanding the foregoing, Article No. 3 of Law No. 11,544, in its subsections a), b) and c) regulates exceptions to the abovementioned maximum limitation on working hours. The limitations do not apply to employees performing duties under the form of a "job team," that is, working in a special coordinating rotation system, nor to employees performing duties in high-level positions (main managers, directors etc.).

    Overtime

    Employees in Argentina are allowed to perform overtime. Overtime will be only compulsory in cases of danger or accidents or imminent force majeure, or by exceptional demands of the national economy or the company (Article No. 203 of the LCL).

    Overtime must be paid with a surcharge of 50%, calculated using the employee's usual salary if the overtime hours were worked during business days, and 100% on Saturday after 1pm, Sunday or holidays. In no event may employees work overtime of more than, 3 hours per day, 30 hours per month or 200 hours per calendar year.

    Wages

    The national minimum wage (NMW) is updated regularly by the National Council of Employment dependent of the Ministry of Production and Labor. The NMW rate as of December 2018 is AR$11,300.

    Most CBAs also provide for a specific minimum wage applicable to employees subject to the CBA.

    Vacation

    Employees with less than 5 years seniority are entitled to 14 calendar days after 6 months of work. This increases to 21 calendar days for employees with between 5 to 10 years of seniority; 28 days for employees with between 10 to 20 years of seniority, and 35 days for employees with more than 20 years of seniority. For employees with less than 6 months of service, employers must grant 1 day of vacation per worked month. Companies should grant vacation to their employees between October 1 to April 30 of the following year.

    Sick leave & pay

    Sick/accident leave of up to 3 months per year must be provided to employees with less than 5 years of seniority, while 6 months must be granted to employees with seniority of 5 years or longer. For employees with "family dependents" (generally understood to be the immediate family that economically depends on the employee’s wage and labor benefits), these periods are doubled, to 6 and 12 months, respectively.

    Maternity/parental leave & pay

    Pregnant employees may take leave of 45 days prior to giving birth and up to 45 days after giving birth. However, the employee may choose to reduce the leave prior to giving birth, but it may not be less than 30 days, and add those days to the maternity leave period after the birth of the child. In the event of premature birth, the period of the leave that has not been enjoyed before the birth will be added to the leave period after the childbirth. Further, the employee is entitled to earn her gross remuneration (without any withholding contributions made to the social security system), during maternity leave. The ANSES (as defined below) pays the remuneration of employees during maternity leave.

    Fathers are entitled to paid leave of 2 consecutive days for the birth of his child. There is no general regulation providing other parental leave after the birth of a child. 

  • Discrimination

    The law prohibits discriminatory acts or omissions based on race, religion, nationality, ideology, political or trade union opinion, sex, economic position, social condition or physical characteristics.

    In addition, Argentina has ratified international antidiscrimination conventions, such as the Convention of Belem do Pará and the Convention on the Elimination of All Forms of Discrimination against Women.

  • Benefits & pensions

    The Social Security National Administration (Administración Nacional de la Seguridad Social, hereinafter ANSES) is the authority in charge of the administration of the social security system in Argentina, called Sistema Integrado de Jubilaciones y Pensiones (SIJP). Employers and employees are required to make contributions to the SIJP which provides for old age pension and disability benefits.

    To qualify for a statefunded pension distribution, male employees must be 65 years old, while female employees must be 60 years old. In both cases, in order to qualify for pension the employee must have contributed to the SIJP for a minimum of 30 years.

    Employers do not have a legal obligation to provide a private pension scheme for employees, as the employees are entitled to state pensions.

  • Data privacy

    The Data Privacy Law No. 24,766 sets limits to the type of personal data that may be collected by prohibiting the collection of sensitive personal data, such as data that is related to political or religious opinions, and regulates the collection, use, processing and transfer of personal data.

    Employers are allowed to monitor employee's work devices, provided the employee is duly notified in advance, and personal information is safeguarded and not disclosed.

  • Rules in transactions/business transfers

    Where there is an asset transfer that qualifies as a business transfer, all obligations arising from the employment contracts that the transferor has executed with its employees will be taken on by the transferee after the transfer. Employment contracts will continue with the transferee and the employees will retain their seniority with the transferor and the rights arising from it. Therefore, on the execution of the transfer, all employees are automatically transferred to the transferee, after their written consent has been obtained.

    Although in practice both internal consultations and collective consultation with trade unions are held before a business transfer takes place, the transferor and the transferee are not required by law to inform or consult employees on a business transfer. However, in order to perform the transfer of staff, the employee’s written consent must be given prior to the transfer. In the absence of this consent, the employee may terminate the employment, with the right to compensation.

    The transferor and the transferee will be jointly and severally liable for any dismissals that arise due to the transfer.

  • Employee representation

    Argentina is a highly unionized country with approximately 3,100 active trade unions with considerable political power. There are unions in nearly all sectors or industries.

    A trade union must be recognized by the Ministry of Production and Labor. Only recognized and authorized unions can enter into a CBA. Employers cannot recognize an unauthorized union voluntarily, not even for collective bargaining purposes.

    The National Constitution sets out collective labor rights in its Article No. 14 (bis), guaranteeing unions the right to collectively bargain and the right to strike.

    CBAs are very common in Argentina. There are different types of CBAs depending on the territory in which they are going to be enforceable. Some CBAs only govern employees within one specific company, whereas other CBAs govern employees performing certain activities in a geographical region or industry.

  • Termination

    Grounds

    Cause is not required for termination of employment; however, it is required to avoid payment of statutory severance. There is no exhaustive and/or exemplary list of behaviors that constitute cause for dismissal; therefore, whether a dismissal is with or without cause will depend on judicial judgment on a case by case basis. 

    Who is subject to termination laws?

    All employees.

    Prohibited or restricted terminations

    Public employees and union delegates cannot be dismissed without cause and without complying with the statutory procedure for these terminations. All other employees can be dismissed with payment of statutory severance, which will differ based on the case (maternity, illness, etc.)

    Pregnant employees are protected from dismissal. If a pregnant employee is dismissed within the period of 7-1/2 months before or after the date of childbirth, the pregnancy will be considered to be the cause of the dismissal, entitling the employee compensation for the discrimination equivalent to their annual salary, in addition to the applicable severance payment.

    Further, if a dismissal occurs 3 months before the marriage of an employee, or 6 months after it, the dismissed employee will be entitled to a special compensation.

    In order to dismiss employees on sick leave, employers must pay a special severance (full severance payment applicable for dismissal without cause, plus the salary which would be payable for the entire period the illness would be expected to last, according to medical opinion).

    Third-party approval for termination/termination documents

    Under Decree No. 1043/18 (effective as of November 14, 2018), employers wishing to dismiss indefinite term employees without cause must notify the Ministry of Production and Labor at least 10 business days before the decision goes into effect. This Decree is effective through March 31, 2019.

    As this decree was issued recently, there is no administrative or judicial case law interpreting the Decree.

    Mass layoff rules

    Prior to a mass dismissal, an employer must provide notice to the respective trade union that regulates the employer's industry. Collective consultation may be required depending on employee headcount.

    Prior to executing or communicating dismissals or suspensions due to force majeure, economic or technological causes that affects more than:

    • 15% of the employees where total headcount is less than 400
    • 10% of the employees where total headcount is between 400 and 1,000 and
    • 5% of the employees where total headcount is greater than 1,000

    Employers must comply with the Preventive Procedure of Companies Crisis (PPC) before the Ministry of Production and Labor. During this procedure, the company will engage in negotiation with the respective union acting on behalf of their members. The aim of this procedure is to avoid business shutdowns or bankruptcy. After the company files the request at the Ministry of Production and Labor, the Ministry will forward the claim within 2 business days of the filing to the other party for its response. After a response is made, a settlement hearing will be scheduled within the next 5 business days. If a settlement is not reached, the Ministry will open a "negotiating period" that must not extend beyond 10 business days. If the parties still do not reach to an agreement within that period, the PPC process will conclude. Notwithstanding this, in practice, this procedure normally takes longer than the law sets out.

    Notice

    In order to proceed with termination, employers must give notice to employees before the dismissal. 

    The term of this notice will depend on the seniority of employees:

    • During their probationary period, notice must be given to employees 15 days before termination
    • In order to dismiss employees who have completed the probationary period but who have less than 5 years of seniority, notice must be given 1 month prior to the dismissal and
    • Employees with more than 5 years' seniority must receive 2 months' notice before their dismissal

    Statutory right to pay in lieu of notice or garden leave

    Employers are permitted to pay in lieu of notice. Current legislation does not regulate nor prohibit garden leave.

    Severance

    An employee who is dismissed without reasonable cause is entitled to statutory severance of 1 month's salary for each year of service, or period longer than 3 months. This amount is calculated using the employee's highest monthly, regular compensation received in the last 12 months of work. This baseline cannot be more than 3 times the "monthly payment," which is the average of all compensation set out in the applicable CBA at the time of the dismissal (this average is periodically published). The Ministry of Production and Labor governs the updating of this average for every authorized trade union.  

    If the employee is not subject to a CBA (typically, senior employees), the limits applicable to the activity in which he/she performs duties will apply. In no case will the amount of the compensation payable be less than 1 month of real salary.

    Currently, in the Vizotti case, the Supreme Court of Justice has raised the basis for calculating compensation subject to a limit, establishing that it will be 67% of the employee's monthly and usual compensation, the amount to be multiplied by the years of service of the employee, based on constitutional reasons and in cases where the application of the legal limit imposes a reduction to the severance payment of more than 33%.

    This severance payment may be reduced or increased in other types of termination (eg, force majeure and lack or reduction of work; death of the employee; employer's bankruptcy; employee's retirement; employee's illness; employee's pregnancy; etc.)

  • Post-termination restraints

    Non-compete, customer non-solicitation and employee non-solicitation clauses are often used, especially when the employer and employee negotiate the terms and conditions of the termination of the employment.

    Restrictive covenants are capable of being enforced post-employment, provided the employee receives compensation for the restrictions. Therefore, consideration is required for valid restrictive covenants. The amount must be fair and in accordance with the salary of the employee, his/her position in the company, the agreements that the company intends to impose and the extent (period and territory) of the restrictive covenant.

    The law does not specifically regulate restrictive covenants. However, most restrictive periods range between 2 years to 5 years. However, under certain circumstances the court has enforced a 10 year post-termination restraint period, based on the business and the amount of consideration paid to the employee.

    Where an employee is in breach of an agreement, the employer can file a claim against the employee in court requesting compensation for damages. The complaint may include injunctive relief to stop the violation immediately. Alternatively, courts may declare the covenant null and void if it has been drafted too widely.

  • Waivers

    Pursuant to the LCL, any executed agreement that suppresses or reduces rights granted by the LCL, labor laws related to specific industries, collective agreements or individual employment contracts, either at the time of their agreement or execution, or the exercise of the rights arising from its termination, shall be null and void.

  • Remedies

    Discrimination

    Compensation is available as a remedy for discrimination or harassment. In case the event of a complaint based on harassment, the employee can file a claim requesting the payment of the statutory severance payment applicable to dismissals without cause and an additional amount for the pain and/or emotional distress caused by the harassment.

    Employers are liable for the acts of their employees. Therefore, the employer and the harasser will be declared jointly and severally liable for the payment of any compensation granted to the victim.

    Unfair dismissal

    Employees may challenge a dismissal without cause within 2 years of the dismissal and seek payment of statutory severance, plus interest and court fees. The complaint must be filed before the labor courts.

    Failure to inform & consult

    Not applicable for terminations as there are no consultation obligations.

  • Criminal sanctions

    Breaches of labor law do not entail a criminal breach or sanction unless such a breach or offense is specifically regulated by the National Criminal Code as a crime. In that case, criminal sanctions will be applied for the breach of criminal law and not for the breach of labor law.

  • Key contacts
    Osvaldo Jofre
    Osvaldo Jofre
    Cordova Francos [email protected]

Remedies

Argentina

Discrimination

Compensation is available as a remedy for discrimination or harassment. In case the event of a complaint based on harassment, the employee can file a claim requesting the payment of the statutory severance payment applicable to dismissals without cause and an additional amount for the pain and/or emotional distress caused by the harassment.

Employers are liable for the acts of their employees. Therefore, the employer and the harasser will be declared jointly and severally liable for the payment of any compensation granted to the victim.

Unfair dismissal

Employees may challenge a dismissal without cause within 2 years of the dismissal and seek payment of statutory severance, plus interest and court fees. The complaint must be filed before the labor courts.

Failure to inform & consult

Not applicable for terminations as there are no consultation obligations.

Australia

Discrimination

If an employee thinks they have been subject to "adverse action" (including dismissal) because of a protected attribute, they may apply for a remedy under the Fair Work Act. Remedies include compensation (there is no cap on the amount of compensation that can be awarded) and reinstatement. A civil penalty can also be ordered.

Compensatory remedies for discrimination can also be sought under Federal or State anti-discrimination legislation. Damages for economic loss and general damages (for hurt and suffering) may be ordered.

Unfair dismissal

If the Commission decides that the employee has been unfairly dismissed, it may order the reinstatement of the dismissed employee (with or without back pay) or, if that is not practicable, the payment of compensation up to a maximum of 6 months' remuneration, or AU$72,700, whichever is less.

Failure to inform & consult

An employer who breaches any of the general protections may incur a penalty. Further, an employee, or a union acting on behalf of a member, may seek an injunction to stop the prohibited conduct or seek compensation (noting there is no cap on the amount of compensation that can be awarded).

Austria

Discrimination

Compensation, based on the claimant's financial loss and injury to feelings as well as recommendation that the employer takes action.

Unfair dismissal

Claim for reinstatement of the employment agreement. Alternatively, compensation based on the claimant's financial loss as a result of the employer having failed to give proper notice.

Failure to inform & consult

Nullity of termination if information of work council or an authority is required.

Bahrain

Discrimination

An employer's termination shall be deemed to be automatically unfair if it is based on the employee's sex, race, religion, belief, social status, family responsibilities, a female worker's pregnancy, childbirth or nursing her infant. The employee will be entitled to compensation as detailed in arbitrary dismissal below.

Arbitrary dismissal

The employee is entitled to compensation equivalent to 3 days' wages for each month of service and no less than 1.5 month's wages up to a maximum of 18 months' wages.

Failure to inform & consult

Not applicable.

Belgium

Discrimination

Uncapped compensation, based on the claimant's financial loss or lump sum indemnity equal to 6 months' remuneration.

Flagrant and unreasonable dismissal

If the employer cannot motivate the dismissal of the employee on grounds related to the employee's work ability, his/her behavior at work or the employer's business necessities, and if a normal and reasonable employer would not have dismissed the employee in the case at hand, the dismissal will be considered flagrant and unreasonable. The employee will be entitled to an additional indemnity equal to between 3 and a maximum 17 weeks' remuneration.

Failure to inform & consult

Re-employment of the employees in case of a collective dismissal (mass layoff). Compensation for moral damages.

Brazil

Discrimination

Indemnification based on the claimant's damages in case of labor lawsuit, plus recommendation that the employer takes action.

The new law establishes parameters that must be observed by the judges when rendering a decision. The maximum indemnity amount cannot exceed 50 times the amount paid by the social security system benefits to the worker (the cap is BRL 276,565).

Unfair dismissal

Severance in case of termination without cause in which the employee is not protected by job tenure is set out in law. In case of termination without cause, employees protected by job tenure can trigger damages and reinstatement.

Failure to inform & consult

As a rule there is no obligation to inform and consult the union about terminations, unless so required by the collective bargaining agreement. In such cases, failure to inform triggers the consequences set out in the collective bargaining agreement.

Failure to inform and consult in mass terminations may trigger reinstatement orders and financial consequences.

Canada

Discrimination 

In most jurisdictions, general damages for breach of the legislation, injury to dignity or mental distress can be awarded in discrimination cases in addition to lost wages and compensation for the loss of employment. Damage awards in this regard are increasing as many jurisdictions have removed legislative caps on the amounts which can be awarded. Additionally, human rights tribunals or commissions have the power to order reinstatement and other non-monetary remedies.

Unfair dismissal

As noted above, only certain employees in the federal jurisdiction and employees who have met certain service requirements in Quebec and Nova Scotia have this right. Damage awards can vary widely based on individual circumstances. Reinstatement is possible.

Failure to inform & consult

Not applicable for this jurisdiction.

Chile

Discrimination

Employees can file a lawsuit against the company in order to look for the cessation of the discrimination conduct and also for compensation of damages. The procedure requires from the employee to submit evidence, and in such event, the company will have to demonstrate that the disputed decision is legitimate and if applicable, that the decision was the alternative that impaired the employee’s rights the least, and that the decision is reasonable. 

Unfair dismissal

An employee could file a claim alleging wrongful dismissal before a labor court. If the employer fails to prove that the termination was based on a reason allowed by statute and precisely outlined in the termination notice, the court will require the employer to pay additional compensation to the employee in addition to severance pay (which ranges from  30% to 100% of the severance compensation, depending on the reason for dismissal). 

Failure to inform & consult

Not applicable for this jurisdiction.

China

Discrimination

Compensation for direct losses.

Unfair dismissal

The Court or Labor Tribunal may make an order for reinstatement or double statutory severance pay.

Failure to inform & consult

May be deemed as illegal dismissal.

Colombia

Discrimination

No specific sanctions are in place.

Unfair dismissal

Employees will be entitled to receive an indemnification, in addition to the final wages. Such indemnification would be calculated as follows:

  • For employees on indefinite employment agreements earning less than 10 minimum legal monthly wages (in 2019 COP$8,281,160), the compensation is 30 days of salary for the first year of service and 20 days of salary for each additional year of service (proportional to the fraction of a year)
  • For employees on indefinite employment agreements earning 10 minimum legal wages or more, the compensation is 20 days of salary for the first year of service and 15 days of salary for each additional year of service (proportional to the fraction of a year)
  • For employees under fixed-term employment agreements the labor indemnification would be the equivalent to the pending payments between the effective date of termination and the date of termination agreed under the agreement
  • For employees who entered into agreements for the duration of a project, the severance would be the estimated salary owed to the employee until the project concludes, however in no case can it be less than 15 days of salary

Failure to inform & consult

Not applicable under Colombian law.

Czech Republic

Discrimination

Right to request that the discriminatory conduct is halted, its consequences removed, right to appropriate compensation (including uncapped monetary compensation). The amount of compensation is assessed with view to seriousness of the damage caused and the particular circumstances of the case.

Unfair dismissal

Right to bring an action to challenge the validity of such a dismissal (statutory time limit of 2 months applies). If upheld by court, the employee remains employed with the company and is entitled to salary compensation for a specified time period (the salary compensation may be capped to 6 multiples of the average monthly wage by the court with view to particular circumstances of the case).

Failure to inform & consult

The State Labor Inspection Office may impose a penalty on the employer, up to CZK 200,000, for failure to inform or to consult.

Denmark

Discrimination

If the employer is held liable for discrimination or harassment, the employee is entitled to compensation from the employer or potential employer. The compensation is not equivalent to the employee's loss; its characteristic is more of a penalty.

In some cases, the employee is entitled to reinstatement. However, it is very rare that the courts award reinstatement. The most common remedy in discrimination and harassment cases is financial compensation.

If discrimination is related to recruitment, the compensation ranges from DKK 10,000 - 25,000. In the event of termination of employment on discriminatory grounds, the compensation ranges from 3 to 12 months' salary depending on the severity of the discrimination and the employee's seniority.

Unfair dismissal

A salaried employee who is unfairly dismissed, and who has been employed for at least 1 year at the time of dismissal, may be entitled to severance pay. The maximum amount payable is 50 per cent of the salary in the statutory notice period. However, if the employee is over the age of 30, the potential severance pay is increased to an amount equal to 3 months' salary. If the employee has been employed for at least 10 years, the severance pay may be increased to a maximum of 4 months' salary. The amount payable is further increased to 6 months' salary if the employee has been employed for at least 15 years. The level of the severance can be settled between the parties or set by the Danish courts.

Failure to inform & consult

Mass layoffs

Non-compliance with the provisions of the Danish Act on Collective Redundancies may lead to a fine on the employer and payment of compensation of between 30 days' and 8 weeks' salary to the employees made redundant, if they do not receive pay during a notice period of equivalent duration.

Different compensation, penalties, penal sanctions and consequences may be provided for by collective agreement.

Transfer of undertakings

Failure to comply with any of the information and consultation requirements may result in the offending employer being subject to a fine or penalty under an applicable collective agreement.

However, if the employer can prove that special circumstances applied, which meant that it was not reasonably practical to comply with these requirements, and that the employer took such steps to comply as were possible in the circumstances, the employer may avoid a fine or penalty. Sanctions for non-compliance with the requirements of a collective agreement can include a penalty in the order of DKK 100,000 – 500,000, or higher.

Finland

Discrimination

Should the employer fail to comply with provisions on gender equality, the employer may be ordered to pay an indemnity to the affected employee, the amount of which is reset every three years. Since 2016, the minimum amount of the indemnity has been EUR 3.570, and in connection with recruitment the maximum amount is EUR 17.840. In the event the employer fails to comply with the Non-discrimination Act, which covers grounds other than gender-based discrimination, the employer may be ordered to pay an indemnity to the affected employee, the maximum amount of which is not restricted in the Act. The affected employee may also claim compensation for loss of income.

Unfair dismissal

Compensation varies between 0 and 24 months' salary in case of redundancies and between 3 to 24 months' salary in case of termination due to reasons relating to the individual employee. The court cannot enforce a reinstatement.

Failure to inform & consult

The sanction for not following the required consultation process in connection with redundancies is a fixed indemnity amounting to maximum of EUR 34,519 (in 2016) per each terminated employee regardless of whether the termination is unlawful. The sanction for breaching consultation obligations in connection with the transfer of an undertaking is a fine, set as part of a criminal process.

France

Discrimination

Any measure taken on discriminatory grounds would be held null and void and entail criminal sanctions (up to 3 years' imprisonment and a fine of up to €45,000 for the company's legal representative and €225,000 for the company as a legal entity), in addition to potential damages for the harm sustained.

Unfair dismissal

Dismissal without "real and serious" cause: if the employee has at least 2 years' seniority and the company employs at least 11 employees, the court may order his/her reinstatement in his/her former position; if either party disagrees, the employee will be awarded damages amounting to at least 6 months' salary. The company will also be ordered to reimburse up to 6 months of unemployment allowances.

If the employee has less than 2 years' seniority and/or the company employs fewer than 11 employees, he or she will be awarded damages for the harm sustained as determined by the court.

Damages to be appraised by the court based on the employee's age, length of service, circumstances of dismissal, etc. No cap applicable.

A November 2016 decree sets the indicative amount of indemnity payable for unfair dismissal, based on an employee's age, seniority and labor market situation. The application of this indicative framework is optional, unless requested by both the employer and the employee. The indicative amounts of the indemnity vary from 1 month of salary (for employees having less than one full year of seniority) to 21.5 months of salary (for employees having at least 43 years of seniority) plus one month if the employee is 50 years old or older, and one more month in case of specific challenges in finding a new job.

Note that the 6-month minimum indemnity for dismissal without real and serious cause (see above) remains, and both provisions must therefore coexist.

This indicative framework no longer applies to dismissals notified after September 24, 2017. The Macron orders provide new rules which apply to dismissals notified from this date. These rules set a mandatory scale of minimum and maximum damages to be granted in case of unfair dismissal, from which Courts cannot depart. Those minimum and maximum amounts depend on the company's headcount and on the length of service of the employee. The Macron orders also make it possible for the Court to take into account the dismissal indemnity paid to the employee (as the case may be) to determine the amount of damages to be granted, should the dismissal be considered unfair.

Note that this framework does not apply where the dismissal is null and void. In such cases, the employee may either be reinstated or obtain an indemnity which cannot be less than 6 months' salary.

Additional claims are often raised by dismissed employees along with unfair dismissal, which will be taken into consideration for compensation purposes.

Failure to inform & consult

Offense of obstruction, which entails criminal liability (fine of up to EUR 7,500 for the company's legal representative and EUR 37,500 for the company as a legal entity).

Germany

Discrimination

Injunction to continue or repeat discriminating actions. Compensation capped at 3 times monthly salary if discrimination is related to the recruitment process. Uncapped compensation in all other cases, based on the claimant's financial loss and injury to feelings. German courts tend to award limited compensation; awards of €30,000 have been seen but are an extreme exception.

Unfair dismissal

Reinstatement. Therefore, most cases are settled.

Failure to inform & consult

The works council can bring legal action, which could result in administrative fines of up to €10,000.

Hong Kong

Discrimination

Uncapped compensation, which can include the claimant's financial loss, injury to feelings compensation of between HK$7,800 and HK$390,000 (based on the Vento guidelines in the United Kingdom, which set out the guidelines used by tribunals to decide how much they should award for injuries to feelings) and in some instances, exemplary damages. It is likely that these amounts will be increased to reflect increases in the guidelines in the United Kingdom (to between HK$8,000 and HK$420,000) but this has yet to be decided by the courts in Hong Kong.

Unlawful and/or unreasonable dismissal

There is no unfair dismissal regime in Hong Kong. The EO provides a statutory right to remedies which differ depending on the circumstances in which the unlawful dismissal and/or unreasonable dismissal took place.

For unreasonable dismissal, or unreasonable and unlawful dismissal, an employee is able to claim reinstatement, reengagement or terminal payments. In particular, the Labor Tribunal may order compulsory reinstatement or reengagement of an employment (without securing consent of the employer) if the employee was unlawfully dismissed and it considers that the making of such an order is appropriate and reasonably practicable. If the employer does not reinstate or re-engage the employee as required by the order, the employer shall pay to the employee a further sum, amounting to three times the employee’s average monthly wages and subject to a ceiling of HK$72,500. The employer commits an offence if he/she willfully and without reasonable excuse fails to pay the further sum.

For unreasonable and unlawful dismissal, where no order for reinstatement or reengagement has been made, the court or Labor Tribunal may also make an award of compensation (up to HK$150,000) to the employee if the Labor Tribunal considers it just and appropriate.

Failure to inform & consult

There are no information or consultation requirements.

Hungary

Discrimination

The Equal Treatment Authority is entitled to decide if there has been a violation of law, may prohibit the violating behavior and also impose a fine on the employer, the maximum amount of which is HUF 6 million by law.

Individual lawsuits can also be brought, where the court is entitled to award compensation for pecuniary and non-pecuniary damages.

Unfair dismissal

Where the court decides that a termination is unlawful, the employer must pay the employee compensation for damages. Lost salary will form part of the damages, subject to a maximum of 12 months' "absence fee." Any amount earned by the employee during the period after the termination has to be deducted.

Reinstatement is also possible but in specific cases only, if the breach is considered to be serious (eg, violation of termination protection).

Failure to inform and consult

In case of failure to inform and consult in connection with a mass layoff or the transfer of a business,  the action taken may be considered unlawful, thus carrying a risk of invalidity or a legal dispute. Also the labor authorities may impose sanctions, including a labor fine.

India

Discrimination

Complaints against unfair labor practices under IDA on grounds of discrimination may be filed by a workman or a trade union before the labor courts. Damages for wrongful dismissal will be assessed in accordance with what the employee would have received if the contract had been properly terminated on its terms.

Complaints of sexual harassment under the POSH Act may be filed by the victim with the internal complaints committee (if against another employee) or the local complaints committee (if against the employer). The victim of sexual harassment may directly file a complaint with the police station having jurisdiction, or under the Indian Penal Code before the criminal courts.

Complaints for discrimination on the basis of a person's disability must be raised with the head of the establishment who should take immediate action in accordance with the provisions of the RPWD Act. The RPWD Act provides for a complaint to be raised with the Chief Commissioner or State Commissioner for Persons with Disabilities.

Unfair dismissal

Complaints of unfair dismissal are filed before the labor courts/tribunals. The courts can grant an employee reinstatement with full back wages with continuity in service, or reinstatement without back wages, or only back wages without reinstatement, or only monetary compensation and consequential benefits.

Failure to inform & consult

The IDA stipulates that an employer who proposes to effect any change in its conditions of service including wages, compensatory and other allowances, hours of work, or any rationalization, standardization or improvement of plant or technique which is likely to lead to retrenchment of workmen; may not effect such a change without giving those workmen likely to be affected 21 days' notice. In some states, the period of notice required is longer and no notice is required where the change is effected in pursuance of a settlement or award. Notice of change is required only where the change in the terms of service is to the detriment of the workman. Any failure on the part of the employer to adhere to this notice process will render any such change void.

As stated above, recent amendments to the MBA and ECA require employers to inform their employees of the benefits available to them thereunder in writing at the time of their appointment. Further, the POSH Act requires that employers provide/organize training, workshops and awareness programs for their employees to make them aware of the provisions of the POSH Act. Employers are also required under the RPWD Act to notify an equal opportunity policy with the contents (as mentioned above).

Indonesia

Discrimination

The employee is entitled to reinstatement, if applicable, or double severance pay, ordinary service pay and ordinary compensation. The Manpower Law does not expressly recognize other damages such as loss of reputation and mental suffering but these may be recognized if a separate, civil action is raised.

Unfair dismissal

Reinstatement or termination benefit (such as compensation which includes back pay).

Failure to inform & consult

Employees are entitled to voice their concerns, but no remedial action will be taken.

Ireland

Discrimination

The Workplace Relations Commission can order re-engagement, re-instatement or award compensation of up to two years' remuneration.

Unfair dismissal

The Workplace Relations Commission can order re-engagement, re-instatement or award compensation of up to two years' remuneration. Claimant is under a duty to mitigate los.

For a transfer-related dismissal, compensation is not limited to financial loss and can be punitive.

In whistleblowing dismissals, compensation can be up to five years' remuneration.

Failure to inform & consult

In theory, in the context of a mass redundancy, failure to inform and consult can amount to a criminal offense, but prosecution is rare. In the context of a business transfer, such failure can result in up to four weeks' pay per complaining employee.

Israel

Discrimination

Uncapped compensation, based on the claimant's financial loss. Punitive compensation of up to ILS 120,000 without demonstrating damages. Reinstatement or reengagement is possible but rare.

Unfair dismissal

Uncapped compensation, usually between 1-24 salaries, depending on circumstances. Reinstatement or reengagement is possible but rare.

Failure to inform & consult

In most circumstances employees are not entitled to information and consultation rights, and these rights will generally only apply to organized workers. Accordingly, awarded damages for failure to inform & consult are rare.

Italy

Discrimination

Reinstatement (or alternatively, at employee's discretion, compensation for damages of 15 months' pay). Additional compensation equal to salary lost from dismissal to reinstatement with a minimum of 5 months' pay.

Unfair dismissal

If the company employs up to 15 employees in the same business unit and 60 employees total, the employer may be ordered to re-hire the employee or, at its choice, pay compensation for damages (ranging from 2.5 – 10 months' salary).

If the company employs more than 15 employees in the same business unit and 60 employees in total, sanctions are more serious and may result in compensation from 12 to 24 months' pay or, in other cases, forced reinstatement of the employee in the job (or, in the alternative, the employee may choose to receive 15 months' compensation), plus compensation for damages up to 12 months' pay. Those provisions apply to employees employed before March 7, 2015.

Under legislation, which applies to employees hired from March 7, 2015, in a company that employs more than 15 employees, newly hired employees who are unlawfully dismissed are entitled to compensation for damages of a minimum of 6 months' and a maximum of 36 months' salary. For companies with up to 15 employees, the penalties range from a minimum of 3 up to a maximum of 6 months' salary.

The employer must reinstate an employee in the event of a discriminatory, void or oral termination (or, in the alternative, the employee may choose to receive 15 months' compensation) and must also pay damages of an amount equal to salary from the date of dismissal to the date of reinstatement. Reinstatement (plus compensation for damages of up to 12 months’ salary) is also provided for in the event of a dismissal for cause or justified subjective reason when it transpires that the alleged unlawful behavior did not happen.

Failure to inform & consult

Failure to follow the collective dismissal procedure leads to compensation of 12 to 24 months' pay. If the breach relates to the social criteria chosen for selecting which employees to dismiss, then reinstatement (or, in the alternative, at the employee's discretion, compensation for damages of 15 months' pay) plus additional compensation of up to 12 months' pay.

Employees hired from March 7, 2015, who are unlawfully dismissed, are entitled to compensation for damages of a minimum of 6 months' and a maximum of 36 months' salary.

Reinstatement (or, alternatively, 15 months' compensation) is provided for in the event the termination is solely communicated orally, with the additional payment of compensation for damages for a minimum of 5 months.

Japan

Discrimination

Discriminatory treatment in salary, working hours and other working conditions against employees based on nationality, creed or social status, or discriminatory treatment against female workers related to salary, shall be punished by imprisonment of not more than 6 months or by a fine of not more than JPY300,000. However, other than that, there is no special enforcement procedure.

Null and void dismissal

If an employee's dismissal is held by a court to be null and void, the employee could obtain the following remedies: reinstatement* and/or award compensation. Once the dismissal is held to be null and void, the employee has the right to have unpaid wages for the period from the dismissal to reinstatement plus statutory interest.

*An employee cannot enforce reinstatement unless his/her employer admits liability, but the employer has to continue to pay any unpaid amount until reinstatement occurs.

Unfair labor practice

A labor union may, within 1 year following the occurrence (or discontinuance) of an unfair labor practice, file a complaint against an employer for such unfair labor practice by seeking a remedial order from the local Labor Commission. This is an administrative procedure, but it is a quasi-judicial process.

Kenya

Discrimination

There is no specific remedy capped on account of discrimination. The employee can, however, sue for damages.

Unfair dismissal

In the event that an employee's contract is terminated, per statute, they are entitled to the following remedies:

  • The wages which the employee would have earned had the employee been given the period of notice due under statute or the contract of service
  • Where dismissal terminates the contract before the completion of any service on which the employee's wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract
  • The equivalent of a number of months' wages or salary not exceeding 12 months based on the gross monthly wage or salary of the employee at the time of dismissal
  • Reinstate the employee and treat the employee in all respects as if the employee's employment had not been terminated
  • Re-engage the employee in work comparable to that in which the employee was employed prior to his dismissal, or other reasonably suitable work, at the same wage

Failure to inform & consult

Would generally fall within a claim of unfair termination and any of the above remedies would be awarded by the court.

Kuwait

Discrimination

Not applicable.

Arbitrary dismissal

There is no cap on the award for arbitrary dismissal; however, awards higher than 3 months' pay are uncommon in most cases.

Failure to inform & consult

Not applicable.

Luxembourg

Discrimination

There are two types of discrimination remedies:

  • Remedies stipulated by the Labor Code, which entitle the affected employee to uncapped compensation, based on his or her financial loss and moral damage
  • Remedies stipulated by the Penal Code, which provide for imprisonment of the person who has discriminated for up to a minimum of 8 days and a maximum of 2 years and/or a fine of between €251 and €25,000

Unfair dismissal

In case of dismissal with notice, the employee is entitled to compensation for moral damages and financial damages. In case of a dismissal for gross misconduct which is deemed unfair, the employee is entitled to a pay in lieu of notice and a severance pay in addition to the compensation for moral and financial damages.

Failure to inform & consult

Criminal sanctions if the employer does not inform/consult or negotiate with the employees' representatives when required. Prosecution is rare.

Malaysia

Discrimination

No specific remedies.

Unfair dismissal

Reinstatement or, more commonly, compensation in lieu of reinstatement. Potential exposure of the employer to pay up to 24 months' back wages and compensation in lieu of reinstatement calculated at one month per year of service.

Failure to inform & consult

No specific remedies.

Mexico

Discrimination

No specific sanctions are in place.

Unfair dismissal

Employer must pay the severance payment plus claimant's unpaid wages from the day he or she was unfairly dismissed until 1 year thereafter, plus monthly increase of 2% of the claimant's total amount awarded plus any proven unpaid benefit (such as overtime, bonus, commissions, etc.), plus 20 days' Integrated Salary for each year of services rendered (this amount is only applicable in case the employee demands his or her reinstatement and the employer rejects it).

Failure to inform & consult

Not applicable under Mexican law.

Morocco

Discrimination

Damages based on the claimant's financial losses and moral damage.

Unfair dismissal

  • Indemnification for dismissal calculated on the basis of the employee's seniority:
    • 96 hours per year of work for the first 5 years of seniority
    • 144 hours per year of work for each year between 6 and 10 years of seniority
    • 196 hours per year of work for each year between 11 and 15 years of seniority
    • 240 hours per year of work for each year after 20 years of seniority
  • Damages equal to 1.5 months per year of seniority
  • Pay in lieu of notice, equal to the remuneration the employee would have received if he had remained at his position during the notice period, if notice was not given.
Note: (1), (2) and (3) are cumulative.

Failure to inform & consult

In case of automatic transfer of employees in the context of an acquisition, if the employees' representatives are not informed, employees may refuse to be transferred and may be considered as having been unfairly dismissed. See consequences of the unfair dismissal.

Mozambique

Discrimination

No precedents. There are penalties but these penalties would normally be applied by the labor inspectorate in case of a labor audit. The general rule in terms of fines is that they vary between 5 and 10 times the minimum wage, and, in some occasions, may be applied per employee.

Unfair dismissal

If the court declares that dismissal was unfair, the employee shall be reinstated and shall be entitled to receive an amount equal to the remuneration payable between the date of the termination and the date of effective reinstatement, subject to a maximum of 6 months. Any amounts received by the employee as severance at the time of dismissal shall be deducted. If reinstatement is not possible, the employer will be required to pay severance corresponding to 45 days per year of service.

Failure to inform & consult

May result in the disciplinary process or termination of contract being deemed unlawful for lack of compliance with mandatory rules.

Myanmar

Discrimination

The employer shall not discriminate or fail to honor the employment rights equally on the grounds of the employee being a member of a labor organization, nationality, religion, race, sex and age. The employees shall be entitled to the prescribed minimum wage without discrimination on grounds of gender.

Unfair dismissal

An employer is not permitted to terminate an employee who did not breach existing laws, work rules or their employment contract.

In the case of an individual dispute, a worker who claims unfair termination may present a claim to the WCC for internal resolution. The claim shall be negotiated and settled by the WCC within 5 days from the receipt day of the claim. If not successful, a worker may submit a complaint to the Township Conciliation Body and if the worker is not satisfied with the outcome, he/she may file a claim with a competent court for unfair dismissal. In the case of a collective dispute, if the workers are not satisfied with the decision of Township Conciliation Body, they may submit a complaint to the Arbitration Body, then the Arbitration Council. The Arbitration Council must form a Tribunal to settle the case .The Tribunal will make a final decision. If the Arbitration Council or Tribunal finds the termination to be unfair, it has the power to:

  • Order the re-instatement of the employee and treat the employee in all respects as if the employment had not been terminated
  • Order the re-engagement of the employee in work comparable to that in which the employee was employed prior to his/her dismissal, or other reasonably suitable work, at the same wage
  • Order the employer to pay compensation to the worker

Failure to inform & consult

Per the standard employment contract, mass redundancies shall be carried out in coordination with the workplace union, or if none exists in the workplace, then with the Workplace Coordination Committee through its representative.Breach of the standard contract can result in fines or imprisonment. 

Netherlands

Discrimination

Compensation depends on damages.

Unfair dismissal

An employee can obtain a court order to be reinstated or can demand an additional ''fair compensation'' on top of the statutory transition payment.

Failure to inform & consult

Works councils can litigate certain decisions of the company, that is, file an appeal with the Enterprise Chamber and request revocation of the company's decision.

New Zealand

Discrimination

If employees believe they have been subjected to discrimination, they may apply for a remedy under either the Employment Relations Act 2000 or the Human Rights Act 1993. Potential sanctions include compensation, declarations, orders and recommendations.

Unfair dismissal

If the Employment Relations Authority determines an employee has been unjustifiably (unfairly) dismissed, the employee may be awarded lost remuneration, compensation and/or reinstatement.  If requested by the employee, reinstatement will be the first course of action considered by the Employment Relations Authority.

Failure to  inform and consult

An employer who does not consult with an employee in circumstances where the employer's decision may ''adversely affect'' the employee's employment may be liable to an unjustified dismissal or disadvantage claim in the Employment Relations Authority.

Nigeria

Discrimination

Discrimination is prohibited by law in respect of gender, religion, age, political affinity, and ethnic/tribal group. There is no cap on the damages; it depends on the claim of the plaintiff.

Unfair dismissal

This usually occurs where the employee feels that the dismissal was not in accordance with the provisions of the contract of employment. This is subject to the claim made by the claimant and judgment awarded by the court. There is no stipulated cap.

Failure to inform & consult

The courts have held that failure to notify the trade union does not invalidate the redundancy. The right conferred on trade unions is merely a right to be informed, and no sanction is provided for failure by employers to do so.

Norway

Discrimination

Right to compensation that the court deems reasonable in view of the circumstances. Compensation for financial loss.

Unfair dismissal

The court must rule the dismissal invalid unless this is clearly unreasonable. Right to be reinstated and/or right to compensation. The compensation is not capped. 

Failure to inform & consult

Failure to inform and consult will often lead to a finding that the dismissal was unfair.

Oman

Discrimination

Not applicable.

Arbitrary dismissal

For arbitrary dismissal claims, the courts may order reinstatement (although this is uncommon in practice) or compensation of no less than 3 months' pay.

Failure to inform & consult

Not applicable.

Philippines

Discrimination

A complaint for violation on the prohibition against discrimination against prohibited by may be filed before the National Labor Relations Commission (NLRC) for damages and/or the Courts for penal sanctions.

Unfair dismissal

An employee may lodge a formal Complaint before the NLRC on any claim for illegal dismissal specifically alleging and substantiating that the dismissal lacked any cause for termination or did not comply with due process as provided by the Labor Code.

Failure to inform & consult

In reference to employee termination proceedings, failure to comply with procedural due process of notice and hearing would allow an employee to lodge a complaint for damages. If termination is deemed illegal because it was not based on just or authorized cause, the remedy is reinstatement with back pay.

Poland

Discrimination

An employee or a candidate can claim compensation of at least the statutory minimum wage.

Unfair dismissal

In case of unlawful or unjustified termination with or without notice, an employee can claim reinstatement to work on the previous conditions or compensation in the limited amount specified in the statutory regulations.

In case of reinstatement, an employee can also claim remuneration for the period of being out of work in the limited amount specified by the Polish law. In case of unjustified termination without notice served by the employee due to the employer's fault, an employer can claim compensation in limited amount specified by law. In the case of the reinstatement of protected employees (ie, employees who will reach retirement age in not more than 4 years,  pregnant employees, employees on maternity leave, or trade union activists), they are entitled to compensation for the entire period of being out of work.

Failure to inform & consult

Failure to inform or consult a works council or a trade union where such notification or consultation are required by law (eg, transfer of undertaking) is subject to criminal sanctions (fine or restriction of liberty).

Portugal

Discrimination

Remedies include declaration of nullity of the company's decision and compensation.

In addition, companies can face a fine, its amount depending on the size of the company, to be imposed by the labor authority, subject to appeal before the labor courts.

Unfair dismissal

The employee may challenge the validity of the dismissal before the labor courts.

In case of unfair dismissal, irrespective of the cause, the employee is entitled to:

  • Payment of back wages (from the dismissal until the date of the court decision)
  • At the employee's option, reinstatement or payment of severance compensation (varying from 15 days to 45 days of base salary per year of service)

Failure to inform & consult

Failure to comply with information and consultation duties in case of dismissal leads to invalidity of the dismissal.

Failure to comply with other information and consultation duties may subject the employer to a fine, its amount depending on the size of the company, to be imposed by the labor authority.

Qatar

Discrimination

Not applicable.

Arbitrary dismissal

The court can award the employee compensation and/or in very rare instances, reinstatement. There is no cap on the level of compensation a court can award. Where a court orders reinstatement, it can also award compensation for the wages lost during the period the employee was prevented from working.

Failure to inform & consult

Not applicable.

Romania

Discrimination

Uncapped compensation, based on the claimant's financial and moral loss, as proven in court. In addition, administrative and criminal liabilities may also be triggered for the employer.

Unfair dismissal

Failure to comply with dismissal requirements can lead to the court:

  • Annulling the dismissal decision
  • Ordering re-instatement, if requested by the employee
  • Ordering payment of salary rights between the dismissal and the court decision which the employee would have benefited from if not unlawfully dismissed
  • Ordering payment of damages (including moral damages), if proven by the employee
  • Ordering payment of trial expenses incurred by the employee (such as legal assistance expenses)

Depending on the factual circumstances, other claims – such as discrimination or criminal complaints – cannot be excluded.

Failure to inform & consult

Uncapped compensation, based on the claimant's financial and moral loss, as proven in court. This also exposes the employer to administrative fines up to approx. €12,000.

Russia

Discrimination

Compensation for moral damage is legally uncapped. However, Russian courts tend not to accept claims for damages exceeding a certain maximum.

Unfair dismissal

Reinstatement of employment and compensation for lost salary, plus compensation for moral damage (see above).

Failure to inform & consult

Violations of labor law could generally result in a fine from between RUB 30,000 and RUB 50,000 for the company (RUB 50,000 to RUB 70,000 for repeated failure); and from between RUB 1,000 and RUB 5,000 for the company's officials (from RUB 10,000 to RUB 20,000 or disqualification for repeated failure).

Reinstatement of an employee is possible.

Saudi Arabia

Discrimination

Not applicable for this jurisdiction.

Unfair dismissal

If the contract is terminated for an invalid reason, the employee shall be entitled to indemnity as stated above. An employee may no longer ask to be reinstated.

Failure to inform & consult

Not applicable for this jurisdiction.

Singapore

Discrimination

Where it can be argued that there has been a breach of the employer's implied duties of mutual trust and confidence because of discrimination, the employee may potentially allege constructive dismissal and claim for breach of contract under common law (with damages as the most common remedy).

Unfair dismissal

EA Employees may lodge a claim with the MOM, and refer disputes to the Commissioner for Labour for Adjudicating Matters, for the purposes of recovering salaries and other statutory payments, or may appeal in writing for reinstatement (within one month from the date of dismissal). As mentioned above, the MOM has the power to reinstate EA employees in an appropriate case. Non-EA Employees can only claim for a breach of contract in civil courts, and do not have other claims. However, from April 1, 2019  EA Employees are all able to bring a claim for wrongful dismissal and which will, for the first time, recognise "constructive dismissal" as a ground entitling a statutory wrongful dismissal claim to be brought. Since April 1, 2017, employers and employees have been be able to resolve salary-related disputes through the Employment Claims Tribunals (ECT). This includes claims for unpaid salary, overtime pay, salary in lieu of notice, employment assistance payment and maternity benefits. The ECT also hears contractual salary-related claims for, for example, payment of allowances, bonuses, commissions, salary in lieu of notice and retrenchment benefits, provided that these are expressed in monetary terms in the contract. The claims limit is SGD 30,000 per case for cases which go through mediation with union involvement, compared to SGD 20,000 for all other claims. From April 1, 2019, the ECT also is able to hear claims relating to wrongful dismissal.

Failure to inform & consult

There is generally no obligation on an employer to inform and/or consult the employee on matters related to his or her employment. This usually only arises in a business transfer situation.

In a business transfer situation, if the transferor fails to discharge his or her obligations under the EA to inform and consult EA Employees prior to the transfer, the employee may refer the matter to the Commissioner for Labor for adjudication, and the Commissioner is empowered to:

  • Delay or prohibit the transfer of the employee concerned
  • Order the transfer of the employee and set such terms as the Commissioner considers just

Slovak Republic

Discrimination

Where the principle of equal treatment with respect to access to employment is violated by an employer, the affected individual will be entitled to reasonable financial compensation.

If reasonable financial compensation is not sufficient, especially where the violation of the principle of equal treatment has considerably impaired the dignity, social status or social functioning of the injured party, the injured party may also seek compensation for non-pecuniary damage. The amount of any compensation for non-pecuniary damage is determined by the court, after considering the severity of the damage caused and the circumstances in which it occurred.

Unfair dismissal

If an employer invalidly terminates employment and the employee informs the employer that he/she wants to continue in employment with the employer, the employee's employment shall not terminate, until a court decides that the employer cannot be equitably requested to continue to employ the employee or a court decides that the termination of employment was valid. The employee will be entitled to wage compensation, amounting to his or her average earnings, from the date the employee requested continued employment with the employer to the date either when the employer allows the employee back to work or on which a court decides on the termination of employment. Wage compensation may be awarded for 36 months at the most.

Failure to inform & consult

Failure to consult/obtain approval of the employee representatives to a termination of employment may result in the termination being held to be invalid by the court. In such a case, the employer must provide the employee with compensation, amounting to his or her average earnings from the date the employee requested continued employment to the date either when the employer allows the employee back to work or on which a court decides on the termination of employment. Wage compensation may be awarded for 36 months at the most.

South Africa

Discrimination and sexual harassment

Claims must first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a Bargaining Council with jurisdiction for conciliation. If conciliation fails, the claim is referred to the Labor Court for adjudication, or for arbitration at the CCMA or Bargaining Council in limited circumstances (ie, sexual harassment cases, with the parties' consent, or if the complainant earned below the BCEA threshold). Strict time limits apply.

Remedies include compensation (unlimited) and damages (limited to the BCEA threshold).

Unfair dismissal and unfair labor practices

The majority of disputes must be referred to the CCMA or Bargaining Council with jurisdiction for conciliation. If conciliation fails, the nature of the dispute determines whether the dispute must be referred to adjudication at the Labor Court, or arbitration at the CCMA or Bargaining Council. Strict time limits apply.

Remedies are primarily reinstatement (possibly retrospective) and compensation, limited to a maximum of 12 months' remuneration for unfair dismissal, and 24 months for automatically unfair dismissal.

Failure to inform & consult

A failure to consult may constitute the basis of a finding of procedural unfairness in an operational requirements dismissal. Where only procedural unfairness is found, the reinstatement remedy is not available. For large-scale retrenchments, if an employer does not comply with a fair procedure, which includes engaging in consultations, the Labor Court may be approached for orders including compelling the employer to comply with a fair procedure or interdicting the employer from dismissing before a fair procedure is complied with.

South Korea

Discrimination

Employees may bring claim before the National Human Rights Commission with possible remedy of recommendation for cease of discriminatory activities and/or damage compensation, etc.

Unfair dismissal

An employee can bring a claim before the relevant Regional Labour Relations Commission (RLRC) with possible remedy of reinstatement with back pay. Where the employee does not wish to be reinstated, a lump sum can be provided to the employee. Employees dismissed without cause may also initiate civil proceedings in the District Court.

Failure to inform & consult

In certain circumstances, the employer's action can be deemed null and void in the absence of required consultation. Action for breach of contract may be possible, but damages should be substantiated.

Spain

Discrimination

Remedies include declaration of nullity of the company's decision; order to immediately stop the discriminatory practice; damages compensation; and/or reinstatement of the employee to his/her position prior to the violation of the fundamental right. In addition, companies can face a fine ranging from €6,251 to €187,515, to be imposed by the Labor Inspector. Fines are subject to appeal, firstly before higher administrative bodies and subsequently before the labor courts.

Unfair dismissal

In case of null and void redundancy or disciplinary dismissal (eg, due to breach of fundamental rights, or due to discrimination): automatic reinstatement plus payment of back wages; in some cases, additional damages compensation.

In the case of unfair redundancy or disciplinary dismissal, the employer must choose between:

  • Reinstatement plus payment of back wages
  • Payment of a severance compensation, as follows:
    • From the hire date until February 11, 2012: 45 days of salary per year of service capped at 42 monthly installments, plus
    • From February 12, 2012 to the termination date: 33 days of salary per year of service capped at 24 monthly installments

In principle, the total severance cannot exceed compensation for 720 days of work, except that the employee is entitled to a higher severance by application of the 45-day rate, in which case compensation is capped at 42 monthly installments.

Employee representatives who are unfairly terminated will have the right to choose between payment or reinstatement.

Failure to inform & consult

Failure to inform the employee representatives of individual redundancy will lead to the declaration of unfairness of the termination.

Failure to comply with information and consultation duties in a collective dismissal will lead to the declaration of nullity of the terminations and a fine ranging from €6,251 to €187,515. If the rights of the trade union are violated, an additional uncapped compensation can be imposed (normally between €3,000 and €6,000).

Failure to inform or entrust in the start of TUPE will result in a fine ranging from €651 to €6,251 and, in exceptional circumstances, the declaration of nullity of the transfer of employees.

Sweden

Discrimination

Any individual or legal entity that violates the prohibitions against discrimination and reprisals, or fails to fulfil the obligations to investigate and take measures against harassment, may be ordered to pay compensation to the individual who has been affected by the breach. An employer may also Unfair dismissal

Employees can challenge a dismissal due to redundancy or due to personal reasons. If the termination is found unjust and deemed to be invalid, the employee is entitled to reinstatement; compensation for loss of income; and damages for other losses suffered and the infringement of the employee's rights. If the employer refuses to comply with a court's judgment regarding reinstatement, the employer is additionally liable for damages equal to 16-32 monthly salaries. If the employee does not ask for reinstatement, he or she will be entitled to economic damages to cover lost salary, capped at a maximum of 32 monthly salaries. In addition to economic damages, the employee will be entitled to general damages.

Failure to inform & consult

Liability for damages to trade unions. Damages seldom exceed SEK 150,000 per breach.

Switzerland

Discrimination

Gender discrimination at hiring: up to 3 month's salary.

Sexual harassment: up to 6 months' pay based on the Swiss average salary. Moral sufferance: generally no more than CHF 25,000.

Unfair dismissal

Maximum penalty of an amount equivalent to 6 months' salary (rarely more than 4 months). Unfair dismissal decided in retaliation against a gender claim may lead to reinstatement in the company (rarely invoked).

Failure to inform & consult

Mass redundancies: 2 possible consequences: a) the employment agreements are not considered as terminated as long as the Cantonal Labor Authority has not been notified of the results of the consultation; b) the dismissal is considered as unfair, giving right to compensation capped to 2 months' salary.

Transfer of business undertakings: general remedies (reimbursement of damages). Merger: possibility to block the merger.

Taiwan

Discrimination

Penalties range from TW$300,000 to TW$1.5 million. Severance and pay in lieu of notice may also be required in dismissal cases.

Unfair dismissal

Employees are usually entitled to severance and pay in lieu of notice. In unfair dismissal cases regarding pregnancy/miscarriage, or occupational injury, penalties range between TW$90,000 to TW$450,000.

Failure to inform & consult

While consultation is required for a mass layoff, there is no requirement to consult the employees in case of individual redundancies unless a mass layoff is involved. Failure to inform would result in the employer being required to pay statutory severance as well as payment in lieu of notice. Penalties range from TW$100,000 to TW$500,000.

Thailand

Discrimination

The employer violating discrimination provisions contained in LPA will be subjected to criminal penalty of a fine of not more than THB 20,000.

Unfair dismissal

Unfair termination or unfair dismissal is where termination of employment is without cause or without reasonable or necessary cause. In the case of unfair dismissal, an employee is entitled to file a case against the employer claiming that his/her termination is unfair.

If the termination is considered an unfair dismissal, the Labor Court may order:

  • Reinstatement – where the employee is re-employed to the same position
  • Re-engagement – where the employee is re-employed to at least the same level as he/she was previously employed
  • Financial compensation

Failure to inform & consult

No statutory requirement.

Turkey

Discrimination

Compensation of up to 4 months' wages plus other claims, such as unpaid wages, bonuses or other social allowances of which the employee has been deprived due to discriminatory acts of an employer.

Unfair dismissal

If the employee benefits from job security provisions and the court reinstates the employee back to work, the employer shall make payment of up to 4 months' total of the wages of the employee and other entitlements if the employer reinstates the employee in accordance the court's decision. If the employer does not reinstate the employee within 1 month, it shall:

  • Make payment of up to 4 months' total of the wages of the employee and other entitlements
  • Pay reinstatement compensation, to be not less than employee's 4 months' wages and not more than employee's 8 months' wages

In the calculation of the reinstatement compensation, only the basic wage of the employee shall be taken into consideration.

Failure to inform & consult

Subject to administrative fines.

Uganda

Discrimination

Uncapped compensation, damages are at the court's discretion.

Unfair dismissal

Basic compensatory order, based on claimant's length of service, reasonable expectations, opportunities available to secure comparable employment (minimum of 4 weeks' wages and maximum of 3 months' wages) plus compensation for breach of due process (1 month's wages) plus severance (negotiable). Reinstatement or reengagement is possible but rare.

Damages in the industrial court are at the court's discretion.

Failure to inform & consult

Failure to inform representatives of a labor union (if any) that represents employees in the organization of impending collective terminations at least 4 weeks before the first terminations, or failure to notify the Commissioner for Labor of the collective terminations, is an offense punishable by a fine not exceeding 24 currency points. Each currency point is UGX 20,000.

Ukraine

Discrimination

There are no special remedies for employees in case of discrimination, but employees may bring claims for compensation for moral and material damages. Employment discrimination may be classified as labor law violations subject to fines.

Unfair dismissal

Reinstatement on the previous terms and conditions and compensation for lost salary, plus compensation for moral and material damage may be awarded in case of unfair dismissal. Moreover, company officers may face administrative and criminal liability.

Failure to inform & consult

Failure to inform and consult with trade unions if required may be deemed a violation of dismissal procedures, and reinstatement may be ordered by a reviewing court.

United Arab Emirates

Employee non-solicits

Potential penalties for breach of anti-discrimination provisions under the new law are imprisonment for a minimum of 5 years, and/or a fine of a minimum of AED 500,000 and a maximum of AED 1 million.

Arbitrary dismissal

The maximum award is 3 months' pay (to include salary and benefits/allowances).

Failure to inform & consult

Not applicable for this jurisdiction.

United Kingdom

Discrimination

Uncapped compensation, based on the claimant's financial loss + injury to feelings compensation of between £600 – 33,000.

It is also possible to claim a declaration of rights or a recommendation (aimed at reducing impact of discrimination).

Unfair dismissal

Basic award, based on claimant's age and length of service (currently capped at £15,240) + compensation based on the claimant's financial loss (currently capped at £83,682) or 52 weeks' pay – whichever is lower). The cap is expected to increase in April 2019. In exceptional cases (eg, whistleblowing dismissals), compensation is uncapped.

Reinstatement or reengagement is possible but rare.

Since April 5, 2014, it has been possible for the tribunal to award a payment for "aggravating features" of between £100 and £5,000. This is paid to the government. In December 2018, the government announced its intention to increase the maximum level of penalty that tribunals can impose for aggregated breaches to £20,000, but this has not yet come into force.

Failure to inform & consult

Redundancy = up to 90 days' gross pay; TUPE = up to 13 weeks' gross pay.

United States

Discrimination

Damages for discrimination vary depending on statute and jurisdiction. Federal caps exist for certain claims. Other claims, including most state law claims, allow for unlimited compensatory damages, including front pay, back pay, emotional distress and attorneys' fees. Many claims allow for the recovery of punitive damages.

Unfair dismissal

Because almost all states follow the at-will employment doctrine, claims for unfair dismissal are generally disfavored, unless it constitutes a discriminatory or retaliatory dismissal or a termination in violation of public policy.

Failure to inform & consult

Similarly, because almost all states follow the at-will employment doctrine, a claim for failure to inform and consult generally does not exist, unless it constitutes a discriminatory or retaliatory dismissal, or a dismissal covered by the WARN Act or its state equivalent.

Venezuela

Discrimination

Any employee who is a victim of discriminatory acts may file an action before the Labor Courts.

Unfair dismissal

In case of unfair dismissal, protected employees are entitled to claim reinstatement and back pay before the Labor Inspector.

Vietnam

Discrimination

Employers are subject to a fine of between VND 10 million (approximately US$440) and VND 20 million (approximately US$880) for an exact discrimination on the basis of gender, skin color, social class, marital status, belief, religion, HIV infection or impairment which occurs in the course of recruitment, employment and worker management.

Unfair dismissal

The employer may face a penalty of up to one year's imprisonment on a case by case basis, if the act of illegally laying off an employee results in serious consequences.

The employer must take the employee back to work under their labor contract, and must pay wages, social insurance and health insurance for the period during which the employee did not work, plus at least two months' wages in accordance with the labor contract.

If the employer does not wish to re-employ and has the employee's consent, then in addition to the compensation prescribed above and the severance allowance, the two parties may agree upon an additional amount of compensation of at least two months' wages in order to terminate the labor contract.

If the role that an individual employee held no longer exists, and the employee wishes to continue to work, then in addition to the compensation mentioned, the two parties must negotiate an amendment or supplement to the labor contract.

Failure to inform & consult

A maximum fine of VND 40 million (approximately US$1,766) will be imposed on employers who fail to inform employees of the terms and conditions of an employment contract.

An employer may be subject to a fine of between VND 10 million (approximately US$440) and VND 40 million (approximately US$1,766):

  • Rejecting a trade union's request for discussion or negotiation
  • Refusing to reach a written agreement with the executive board of internal trade union or superior trade union when unilaterally terminating employment contracts, reassigning workers, or laying off workers who are part-time union representatives