CMS Expert Guide on sexual harassment in the workplace

Sexual harassment is prohibited by the Austrian Equal Treatment Act (“Gleichbehandlungsgesetz”) passed in 2004 and by the Federal Equal Treatment Act (“Bundes-Gleichbehandlungsgesetz”) passed in 1993. Since then, there have been amendments due to European Union legislation. The rules in both acts follow the same scheme and address:

  • sex-related harassment i.e. unwanted conduct related to the protected characteristic of sex;
  • harassment of a sexual nature i.e. unwanted conduct of a sexual nature.

(Sexual) harassment is subject to the Equal Treatment Act if it (1) results in an intimidating, hostile or humiliating work environment for the people concerned or this conduct is aimed to do so, or (2) if it results in a less or more favourable treatment based on a person's rejection of, or submission to, sex-related harassment or sexual harassment. 
Section 6 Austrian Equal Treatment Act prohibits harassment:

  • by the employer,
  • by a third party related to the employment,
  • by a third party not related to the employment.

The Act also holds the employer liable if he or she fails to provide a remedy against (sexual) harassment.  

Under the Dutch Working Conditions Act (1999) (in Dutch: Arbeidsomstandigheden wet) (“the Act”) employers are obliged to create a safe and healthy working environment for their employees. The Act applies to all employers and employees in the Netherlands. The Act also applies to international employers who have employees working in the Netherlands. Both the employer and employee are subject to statutory obligations, as both parties are responsible for health and safety at work. The specific rules for employer and employee to ensure a healthy and safe workplace are further laid down in the Working Conditions Decree (in Dutch: Arbeidsomstandighedenbesluit).

Regarding sexual harassment in the workplace, employers are required by the Act to prevent and/or limit inappropriate behaviour (discrimination, sexual intimidation, aggression and violence and bullying).

The Act states:

"The employer shall operate a policy aimed at preventing employment-related psychosocial workload, or limiting it if prevention is not possible, as part of the general working conditions policy" (article 3, sub 2 Dutch Working Conditions Act).

Employment-related psychosocial workload is being described as: "the factors direct or indirect distinction, including sexual intimidation, aggression and violence, bullying, and work pressure, in the employment situation that cause stress" (article 1, sub 3e the Act).

Furthermore a general prohibition on sexual harassment by the employer is included in the Civil Code under article 7:646 Dutch Civil Code and article 1a of the Equal Treatment Act (1994) which states that "sexual harassment  is understood: any form of verbal, non-verbal or physical behaviour of a sexual nature of which the purpose or effect is the violation of a person's dignity, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment".

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

The Austrian Equal Treatment Act treats the employer's failure to address and put an end to sexual harassment as itself sexual harassment. Hence, the employer is legally obliged to act if any charges of sexual harassment occur, but not to pro-actively engage in action to prevent sexual harassment. 

Employers are legally obliged to prevent any form of sexual harassment. To be able to do this properly, employers are required to map out all occupational health risks, including sexual harassment, in a Risk Inventory and Evaluation Plan (RI&E plan) (article 5 of the Act). Once these risks are in scope, the employer is obliged to prepare a so-called Plan of Action which is based on the RI&E. The Plan of Action must include what the company is going to do to prevent identified risks and within which timeframe. Employees should be informed about the Plan of Action, about the risks and measures to be taken by the company. The employer must demonstrably carry out all these actions.

In the context of the Act, the Inspectorate SZW supervises, among other things, psychosocial work risks, including sexual harassment. In the event of a (suspicion of) violation or abuse, employees, representatives of a trade union, works council and/or staff representation can submit a complaint to the Inspectorate SZW. As a rule, an investigation follows. An investigation by the Inspectorate SZW is aimed at tracing the cause, cancelling the violation and preventing a recurrence.

Employers are legally obliged to provide a safe working environment for their employees and must have adequate complaint procedures and disciplinary protocols in place. In the case of a sexual harassment complaint filed against an employee, employers should strictly follow their own internal procedures and protocols and should not always choose (instant) dismissal as a sanction. This obviously starts with employers ensuring that the company has a policy against (amongst others) sexual harassment which clearly sets out the definition of sexual harassment, who can file a complaint, with whom and how the complaint will be handled. The employer should actively share such policy with employees and educate management in order for them to recognise and prevent deviating behaviour. The policy should also include disciplinary sanctions which can vary depending on the severity of the complaint filed and other relevant facts such as the persons involved and even the culture of the company. The Inspectorate SZW advises companies to appoint an independent complaints committee that can monitor and handle complaints. In practice companies usually opt for an internal committee or individuals who are designated to handle complaints and tend to involve lawyers to support the further handling of these types of complaints.

3. Has the #MeToo movement had a noticeable impact on the number of harassment claims against your employer clients?

No, there has not been a noticeable impact on the number of harassment cases against our clients, but we experience an increasing awareness of how damaging a company's failure to act swiftly and appropriately on sexual harassment allegations may be.

We have seen that the #MeToo movement has led to an increased interest in the way employers react to sexual harassment scandals in the workplace. Because of the #MeToo movement, more and more people are empowered to come forward and raise issues at their companies or organisations.

Also notable is the continued media focus on how Dutch courts rule in the situation that an employer and employee end up in court in the event that the employer wishes to terminate the employment agreement due to improper (sexually-related) conduct at the workplace. Based on case law, it can be concluded that such behaviour does not necessarily lead to harsh rulings on employees who are accused of sexually improper conduct for various reasons. These cases also show that employers should ensure proper policies regarding sexual harassment-related behaviour and complaints within their organisation are in place and ensure they comply with these policies.

Employees may receive support from their works council or trade union, the Austrian Chamber of Labour, or the Ombudsman for Equal Treatment (“Gleichbehandlungsanwaltschaft”). All the bodies mentioned can initiate legal proceedings at the Equal Treatment Commission (“Gleichbehandlungskommission”). Additionally, the employee can claim compensation in front of labour courts.

The employee is entitled to a minimum compensation of EUR 1,000.00 for the personal detriment suffered. Moreover, any other financial loss must be compensated.

Based on the law, an employee who has suffered from sexual harassment may claim compensation from the offender or employer under civil law. Compensation for harassment is potentially uncapped although the Netherlands is not known for its claim culture. In practice these types of claims are made by the employee against the employer where there is also a claim regarding the termination of employment. This may be the case if an employee is able to substantiate that she/he has become sick because of (for example) sexual harassment conducted by a colleague and the employer has failed to adequately protect the employee and/or handle the claim properly. Furthermore, an employee can file a complaint at the Inspectorate SZW and they may take further action against the employer.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?

Tackling sexual harassment is of medium priority for our clients (amber). Our impression is that companies aim to deal with harassment cases professionally, given the increasing moral awareness and the increasing risk of reputational damage. There is an increasing appetite to quickly address allegations of harassment to avoid reputational damage and to minimise the physical and psychological stress of the individuals involved. Yet, we strongly advise clients to place more importance on measures to prevent sexual harassment.

As we are seeing more and more cases with different rulings in case law, we would say that it currently sits in the red category for clients in the Netherlands.

6. Any other relevant information on workplace harassment?

The allocation of the burden of proof works in favour of the employee as the individual employee must only show the credibility of the harassment allegations. It lies with the employer to refute these allegations.

It should be noted that due to the #MeToo movement and the increase of people coming forward about sexual harassment, the Netherlands is contemplating the introduction of stricter criminal laws around sex crimes. Based on a new legislative proposal of Minister Ferdinand Grapperhaus of Justice and Security, one can be punished under criminal law if you know the other person did not want to have sex, and if you could have known that. When in doubt, the person initiating sexual acts has the duty to ask whether the other person is okay with what is happening.