Prohibition of discriminatory treatment
The concept of discriminatory treatment
- “Discriminatory treatment” means imposing unfavorable treatment on the following without just cause (Article 2, subparagraph 3 of the Act on the Protection of Fixed-Term and Part-Time Employees).
· Wages
· Regularly provided bonuses, such as regular and holiday bonuses
· Performance-based incentives
· Other matters concerning working conditions, welfare, etc.
Prohibition of discriminatory treatment
- No employer may afford discriminatory treatment to any fixed-term employee on the grounds of their employment status compared to employees who have concluded non-fixed term employment contracts and engage in the same or similar kinds of work in the business or workplace (Article 8(1) of the Act on the Protection of Fixed-Term and Part-Time Employees).
- No employer may afford discriminatory treatment to any part-time employee on the grounds of their employment status compared to full-time employees engaged in the same or similar kinds of work in the business or workplace (Article 8(2) of the Act on the Protection of Fixed-Term and Part-Time Employees).
※ The above provisions do not apply to businesses or workplaces that regularly employ four or fewer employees (Article 3(2) of the Act on the Protection of Fixed-Term and Part-Time Employees; Article 2 and Attached Table 1 of the Enforcement Decree of the Act on the Protection of Fixed-Term and Part-Time Employees).
Standards for the discriminatory treatment of a fixed-term employee
Comparison of employees
- The existence of discriminatory treatment of fixed-term employees is determined by comparison to employees who have concluded non-fixed term employment contracts and engage in the “same or similar kinds of work” in the business or workplace (Article 8(1) of the Act on the Protection of Fixed-Term and Part-Time Employees).
What are “unfavorable treatment” and “without reasonable cause?”
- “Unfavorable treatment” refers to the overall disadvantage incurred by a fixed-term employee due to the business owner’s differential treatment of the fixed-term employee and regular employee in wages and other working conditions, etc., while “without reasonable cause” means no necessity is found to treat fixed-term employees differently, or even when such necessity is found, the means or extent, etc., are not appropriate (
Supreme Court Judgment 2011Du7045 declared on October 25, 2012).- The existence of reasonable cause must be determined by considering as a comprehensive whole the fixed-term employee’s form of employment, the substance, scope, authority, and responsibility of the work, and determinants of wages and other working conditions, etc., based on the details of the unfavorable treatment at issue in individual cases and the circumstances that were the cause of the employer’s unfavorable treatment (
Supreme Court Judgment 2011Du7045 declared on October 25, 2012).
Standards for the discriminatory treatment of a part-time employee
Comparison of employees
- The existence of discriminatory treatment of part-time employees is determined by comparison to full-time employees engaged in the “same or similar kinds of work” in the business or workplace (Article 8(2) of the Act on the Protection of Fixed-Term and Part-Time Employees).
What are “unfavorable treatment” and “without reasonable cause?”
- The standards for determining “unfavorable treatment” and “without reasonable cause” for a part-time employee are identical as for a fixed-term employee.