Sexual harassment in Thai workplaces has been attracting increased attention in recent times.
One reason for this is that the Thai government is placing more importance on workplace culture and the elimination of sexual harassment in the workplace in order to attract foreign investment. One step the government has taken with this goal in mind is legislative amendments. Laws that prohibit sexual harassment now provide broader protection for workers: previously, the Labour Protection Act only protected employees against sexual abuse, however recent amendments have extended its coverage to sexual harassment, including offensive sexual remarks. In addition, the old provisions only prohibited harassment directed towards female employees and minors, whereas the amended provisions prohibit harassment against all employees.
Another development in relation to sexual harassment in the workplace concerns litigation brought by former employees. There appears to be an increasing number of claims brought by former employees who have been summarily dismissed after they were found to have engaged in sexual harassment in the workplace. The employees dispute their employer’s right to terminate their employment and seek severance pay and payment in lieu of notice.
In a number of these cases, the employer in question has failed to include sexual harassment as a ‘serious offence’ in the work regulations or collective agreement. As a result, the dismissal was deemed to be ‘without cause’ and the employer has been required to pay severance and notice of termination or wages in lieu thereof. In the absence of the applicable work regulations or employment terms stipulating that sexual harassment is a ‘serious offence’, an employer considering dismissing an employee on the basis of sexual harassment has two options:
- give a prior written warning that the conduct constitutes the offence of sexual harassment; if the employee repeats the offence within a year, terminate the employee ‘with cause’ and avoid paying severance;
- terminate the employee ‘without cause’ and risk paying severance and payment in lieu of notice.
If an employer has not stipulated that sexual harassment is a ‘serious offence’ and does not provide a prior written warning or payment in lieu of notice and severance, it is still open to the Labour Court to determine that the sexual harassment was serious enough to justify termination. However as this determination is made on a case-by-case basis, the employer is at risk of an adverse finding.
Employers should be aware of the broader prohibitions against sexual harassment under the Labour Protection Act and ensure they have appropriate policies and training in place.
Actions for employers
Employers should consider reviewing (and if necessary revising) their work regulations or employment terms to ensure that sexual harassment is included in the list of serious offences. This inclusion allows an employer to dismiss an employee “with cause” (i.e. without notice of termination) if they have engaged in sexual harassment in the workplace.