Romania: employees can claim moral damages

Employers who prejudice employee rights may now be required to pay moral as well as material damages, following a recent change to the Romanian Labour Code.

Previously, the approach of the Romanian courts had been inconsistent in dealing with employee challenges to their dismissal and other tort claims: some interpreted the Romanian Labour Code (article 269) as excluding moral prejudice because it only expressly mentioned material damages; whereas other courts awarded moral damages because they are permitted under common civil law.

This has now been changed by the inclusion in the Labour Code of an express right to moral and material damages for employees suffering prejudice at the hands of their employer at or in relation to their work.

Claims of this kind are likely to increase as a result of the change, not least because:

• employees making such claims will no longer have to pay legal duties (usually c.6-8% of the amount claimed)
• employers can no longer plea that the claim is inadmissible and
• employers would face imprisonment if they did not comply with a court order

The Romanian courts have generally been reluctant to grant moral damages and this may continue. However, the procedure for moral damages claims remains unchanged:

• employees must still prove that one of their non-patrimonial rights (such as: right to a private life, to dignity, to gender equality, not to be discriminated against at work etc) has been infringed
• employees do not have to prove the exact amount of the damages they have suffered
• moral damages will be estimated as the sum of money they need for their life to be returned to the way it was before their rights were infringed or, where this is impossible, a fair amount which usually is proportionate to their income