SOUTH KOREA Law and Practice Contributed by: Sang Wook Cho, Soojung Lee, Seung Hyun Lee, Tae Eun Lee and Christopher Mandel, Yulchon LLC
statutory obligation to take measures to protect the alleged victim, if necessary. Typical measures include a change of workplace or working arrangement, or paid leave. Importantly, the employer should not take any such measures against the will of the alleged victim, so the employer must confirm that any such interim protective measures are acceptable to the alleged victim. Failure to take such interim protective measures as described above carries no explicit legal penalty, but it is a violation of the law and may result in higher fines if combined with other offences. In sexual harassment investigations, the employer is also obliged to take due care to avoid causing further sexual humiliation to the alleged victim. After a workplace harassment or sexual harassment investigation is complete and harassment is found to have occurred, the employer must take the necessary protective measures upon the request of the victim. Failure to take necessary post-investigation protective measures may be subject to an administrative penalty of up to KRW5 million. At the same time, employers retain reasonable discretion in determining the specific type and scope of protective measures. For example, even if a victim requests a particular measure such as paid leave, the employer is not strictly bound to implement that exact request. It is generally under - stood that the employer may determine appropriate measures and their duration by considering factors such as business needs, the nature and extent of the harm suffered by the victim, the victim’s health condi - tion, and any required recovery or treatment period. Since investigation details must be kept confidential and retaliation against a victim (or alleged victim) or other reporter is prohibited, an employer should also take care to prevent improper disclosure of informa - tion about the investigation, or adverse treatment of a victim (or alleged victim) or other reporter. In other kinds of investigations besides harassment cases, there are no specific requirements to take affirmative protective measures. A reporter may qual - ify as a “whistle-blower” under Korea’s whistle-blower protection law, but this largely prohibits any retalia - tion and requires protecting the confidentiality of the
report, and does not require taking affirmative protec - tive measures. In any case, protective measures may be practical - ly advisable to avoid disputes or disruption, and to reduce the risk of any adverse treatment or event that could appear to be retaliation. 4.2 Protection of the Respondent There are no specific legal requirements to take pro - tective measures for a respondent. However, it is important for the employer to remain neutral toward the respondent until the allegation is confirmed. Lack of objectivity and reliability in the investigation can undercut the results, making the respondent less likely to accept the conclusions and leaving the employer vulnerable to claims that the conclusions are unreli - able. In the case of workplace harassment investiga - tions specifically, the employer may be fined up to KRW5 million for failing to maintain the objectivity of the investigation. 4.3 Measures Against the Respondent If an employee brings a legal challenge to overturn an employer’s disciplinary action, the employer has the burden to prove that it had just cause. The standard of proof required to establish “just cause” is typically interpreted as being very high. Therefore, except in very exceptional circumstances, employers should not take disciplinary action against a respondent until the investigation is completed and there is sufficient evidence to defend disciplinary action. If the employer takes any disciplinary action before collecting sufficient evidence to clearly prove the misconduct, the respondent may bring a legal claim alleging unfair disciplinary action. If that claim is suc - cessful, the disciplinary action will be nullified. If the circumstances warrant it, a respondent might be placed on non-disciplinary paid administrative leave during an investigation to prevent potential disruption or interference. 4.4 Protection of Other Employees There are no specific obligations to take protective measures for other employees. However, an employer is generally considered legally responsible for main - taining a safe workplace and can be held liable for
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