Regulations on sexual harassment in the workplace in Monaco

Act No. 1.457 of 12 December 2017 establishes a real legal framework for acts of harassment and violence in the workplace. 

The law covers a broad spectrum:

• it applies to employees in both the private and public sectors, and covers all employment relationships (employees, trainees, apprentices);
• Harassment can be characterized both vertically (by a hierarchical superior towards a subordinate) and horizontally (between subordinates);
• whether it takes place inside or outside the workplace. 

It has recently been updated 1  and now explicitly covers four types of behaviour, two of which specifically concern unwanted sexual behaviour: sexual harassment, sexual blackmail and bullying and violence. 

The main innovation of this amendment is that sexual blackmail does not have to be repeated and, unlike harassment, can be an isolated act. 

It should be noted that unwanted behaviour can correspond to all 4 definitions: sexual harassment can be combined with moral harassment and accompanied by violence (not necessarily physical, but also moral) and sexual blackmail. 

Although this prohibition is relatively recent, the concept of harassment and violence in the workplace has always been understood and re-understood by the jurisprudence of the Civil Code:  

• victims of incidents that occurred before the Act came into force (i.e. events prior to 22 December 2017) could seek to hold the employer liable based on the obligations of good faith and vicarious liability enshrined in the Civil Code.
• They could also seek to hold the employer and the perpetrator liable before the criminal courts (under Articles 236-1 and 249-2 of the Criminal Code), which make harassment a criminal offence punishable by a imprisonment: 

These texts are always useful when faced with abusive behaviour that does not, however, qualify as harassment in the workplace, which often happens, as it is difficult to prove harassment in the workplace. 

As things stand, the criminal penalties provide for the following quantum of sentence: 

• Moral harassment in the workplace is the act of knowingly subjecting any person, by any means whatsoever, to repeated actions or omissions, the purpose or effect of which is to worsen working conditions, likely to infringe their rights and dignity, alter their physical or mental health or compromise their professional future. It is punishable by:
  • six months' to two years' imprisonment and the fine provided for in Article 26  of the Criminal Code, or one of these two penalties only, where it has not caused any illness or total incapacity for work;
  •  one to three years' imprisonment and double the fine provided for in Article 26, or one of these two penalties only, where it has caused illness or total incapacity for work not exceeding eight days.
  • from two to five years' imprisonment and double the fine provided for in section 4 of article 26, or one of these two penalties only, where it has caused illness or total incapacity for work for more than eight days. 
•  Sexual harassment and sexual blackmail will be punishable by three to five years' imprisonment and the fine provided for in Article 26(4), or by one of these two penalties only, when the acts are committed: 
  • by a person who abuses the authority conferred on him by his functions or in the context of an employment relationship;
  • on a minor;
  • on a person whose particular vulnerability, due to age, illness, infirmity, physical or mental disability or pregnancy, is apparent or known to the perpetrator;
  • on a person whose particular vulnerability or dependence resulting from their precarious economic or social situation is apparent or known to the perpetrator;
  • by several persons acting as perpetrator or accomplice;
  • through the use of an online public communication service or through a digital or electronic medium;
  • where a minor was present and attended;
  • by an ascendant, descendant, brother, sister, uncle, aunt, nephew or niece, their spouse or partner in a cohabitation contract or the person living in a marital relationship with them, or by any person having de jure or de facto authority over the victim;
  • by a current or former spouse, a current or former partner in a cohabitation contract, a current or former cohabitant in a cohabitation contract or any other person living with the author under the same roof or who has lived there permanently. 

Indeed, Monegasque employers must endeavour to prevent, deal with and punish the acts covered by law no. 1457. If they fail to do so, as indicated above, they may be held liable.   

As part of their duty of prevention, the law requires employers to:

• appoint a harassment officer 2 (who will be a protected employee) if the company has more than 10 employees, who will be responsible for receiving any complaints and forwarding the information to the employer (statement countersigned by the victim);
• set up a reporting and investigation procedure
• inform staff (and any staff representatives) of the appointment and role of the employee representative and of the investigation procedure. 

In addition to these obligations and the fact that they are constantly attentive to the social climate in the company, the employer must deal with the situation once it has been reported. They must react immediately and carry out a full, impartial investigation. During the investigation, protective measures may be taken, such as keeping the employees involved away from each other. However, the alleged perpetrator should not be punished if he or she is presumed innocent - it is important to ensure that all employees are treated equally. 

At the end of the investigation, depending on the findings (which must be recorded in writing as evidence), the employer must draw the appropriate conclusions and, if necessary, take action against the perpetrator.   

As mentioned above, the victim can take civil and criminal action against the perpetrator, as well as against the employer (if it is not the perpetrator of the harassment) for failing to do everything possible to protect employees from the risk of harassment and its effects. 

In addition, the employer will not be held liable if it has fulfilled its obligations.  

It should be noted that there are certain special provisions for public employees: The General Inspectorate of Administration may, at the request of the mayor, investigate reports of harassment, sexual blackmail or violence at work concerning any civil servant or agent of the municipality. The request shall be sent in writing, accompanied by the report of the person claiming to be the victim of one of these acts, to the General Inspectorate of Administration, which shall inform the Minister of State; after hearing the persons referred to in the previous article, the General Inspectorate of Administration shall draw up a report on the investigation of the report. In this report it will state its assessment of the nature of the facts reported. This report is sent to the Mayor, together with the recommendations of the General Inspectorate on the measures required to put an end to the acts reported; the employer is subrogated to the victim's right to recover from the perpetrators of the acts in question any compensation they may have paid. In this respect, he has a direct right of action which he can exercise by bringing a civil action before the criminal court.  

We do not yet have sufficient hindsight to determine the full impact of the #MeToo movement on the number of harassment claims brought against our employer clients. 

However, harassment issues are now being raised more regularly in litigation. 

Complaints of sexual harassment in the workplace are dealt with through the ordinary channels of appeal. 

As announced, there are two possible ways that can be pursued simultaneously: civil and criminal. 

From a civil point of view: 

→ for the private sector, the Labour Court has exclusive jurisdiction for disputes relating to the performance of the employment contract. 

It should be noted that acts of harassment benefit from provisions that derogate from ordinary law:

• The fast-track procedure provided for by Law no. 446 of 16 May 1946 enables a case to be brought before the Labor Court by means of a petition addressed directly to the judgements office (without going through the conciliation procedure, which is compulsory for all other disputes).
• The judge may prescribe any provisional measures to put an end to the matter.
• The statute of limitations begins to run from the last act of harassment committed.
• Punishing an employee for reporting harassment is null and void. Article 3 of Law no. 1.457 guarantees that no employee may be subject to disciplinary action or a measure that has a negative impact on his or her career progression if he or she has i) suffered the incriminating acts; ii) witnessed such acts; iii) or reported such acts. Any sanction or measure taken in disregard of the provisions of the preceding paragraph is null and void. 

→ for public sector employees, the court of first instance will have jurisdiction. Depending on the case, the matter may be referred to by ordinary or urgent procedure and protective measures may be taken. 

From a criminal point of view, for all sectors (private/public), it is the criminal court. A complaint or direct summons is lodged with the criminal court. 

The priority level for the fight against sexual harassment is red. 

In order to keep this issue as a real priority, the Labour Directorate has published a guide to raise awareness among all actors in the labour market and to help them prevent and deal with harassment and violence in the workplace. 

Case law is very tough on employers who fail to meet these obligations, which testifies to the importance and sensitivity of this issue. 

In Monaco, the burden of proof has been eased: the legislator has shifted certain evidentiary requirements. Under Article 6 of Law No. 1.457, the alleged victim no longer has to prove all the facts, but only those which give rise to a presumption of harassment. The court then assesses this presumption on the basis of a series of "serious, precise and consistent" indications. Once this presumption has been established, the accused must prove that he or she has not engaged in any conduct prohibited by law. 

As a consequence of these provisions, there has been a relaxation of the case law, which previously often considered that the reported facts fell within the scope of the employer's or hierarchical superior's management power and were considered harassment. 

However, in order to prevent abuse, the law provides a safeguard:

• Any false or malicious statement is punishable by a civil fine (EUR 3,000.00), a criminal conviction for defamation (up to 3 years imprisonment and a fine of up to EUR 18,000.00) and possible damages; 
• The law expressly states that any employee who deliberately makes a false statement concerning the commission or non-commission of any other of these facts is also liable to disciplinary action. 

We are not aware of any sectors that are particularly affected. Harassment is a widespread problem that affects all sectors.