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.  

The term sexual harassment is not defined by Russian law. Depending on the facts of the case sexual harassment may either be considered as discrimination or as another type of offence (e.g. coercion into sexual contact, etc.).

The Russian Labour Code (dated 30 December 2001) prohibits any type of employee discrimination including any sex-related discrimination (there are, however, no statutory norms explicitly regulating sexual harassment at work). A similar legal provision is also contained in the Constitution of the Russian Federation dated 12 December 1993, which protects the equality of all persons irrespective of their sex.

Employers are also allowed to include provisions addressing sexual harassment at work in collective bargaining agreements; however, this is not a widespread practice in Russia.

The legal definition of harassment in the Equality Act 2010 is “unwanted conduct which violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment”.

In addition to the general prohibition on harassment there is a specific provision in the Equality Act regarding sexual harassment.  Section 26 of the Equality Act 2010 prohibits three types of harassment in relation to the protected characteristic of sex:

  • 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; and
  • less favourable treatment based on a person's rejection of, or submission to, sex-related harassment or sexual harassment.

A consultation in 2019 also considered introducing a number of changes in order to tighten up the law on workplace harassment. In January 2020 the UK Equality Body, the Equality and Human Rights Commission (EHRC), published technical guidance on workplace harassment, which it is anticipated will form the basis of a statutory code of practice when the government publishes its response to the 2019 consultation. The EHRC has also published Guidance on the misuse of Non Disclosure Agreements (NDAs) or confidentiality clauses in discrimination cases.

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. 

There are no explicit statutory requirements for employers to take any pro-active measures in this regard. However, the employer must make sure that employees’ rights are not violated and, in this respect, should any cases of sexual discrimination/ harassment take place at work, the employer must take measures to remedy the respective violation.

While there is no specific set of rules regulating the steps that private sector employers must put in place to prevent harassment in the UK, in order to avoid becoming vicariously liable for the actions of employees who harass their colleagues an employer should put in place a system known as reasonable steps, which includes training, policies and a preventative approach.

Certain public authorities are obliged to comply with the Public Sector Equality Duty (PSED) which says that employers should pay “due regard” to the need to eliminate harassment and discrimination. This means that employers should consciously consider these issues when making decisions. An employee cannot bring a claim for a breach of the PSED, enforcement is via the EHRC, and would not occur for a one-off instance of harassment.  

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.

No. Based on the available information, this movement had no impact on the employment relations, nor has it led to any claims filed by employees against employers in Russia.

Yes. We have seen a noticeable increase in our clients receiving harassment complaints, both in the form of internal complaints and Employment Tribunal claims. We have also seen a significant increase in requests to provide training to clients on this issue to drive cultural change of what standard of conduct is appropriate and to help them recognise the sort of innocuous behaviours that can constitute harassment. Clients are also looking at improving their internal processes for dealing with complaints and are refining their investigation procedures and also making the reporting process easier for employees. In our view there has been a significant cultural shift and, for example, for the first time in the UK we have seen large professional service firms publicly acknowledge that they have dismissed senior individuals because of their behaviour.

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.

The employee can bring a claim to court and/or state labour authority against the employer. If the employer is found violating the employee’s labour rights, it can be subject to an administrative fine of up to RUB 50,000 (approx. EUR 560). The corresponding manager can also be fined up to RUB 5,000 (approx. EUR 56). The remedy can also depend on the type of action taken by the employer against the employee, e.g. if the employee was wrongfully dismissed, the court may also reinstate the employee in his/her position.

The employee can also claim in court “moral damages” suffered due to their employer’s unlawful actions. In order to claim moral damages, an employee will need to provide proof (e.g. by submitting a medical certificate issued following a medical examination of the employee.) The causal relationship between the harm caused to the employee’s health and the employer's actions, as well as the amount of the claimed moral damages should also be established by court. In practice, courts usually award very insignificant amounts of moral damages (up to EUR 500).

The victim can also make a claim to the police (depending on the nature and consequences of harassment). Sexual discrimination committed by a person by the use of his/her management power is considered to be a crime in Russia (the convicted person can be sentenced to up to 5 years to prison). If the element of management power has not been involved in the case of discrimination (e.g. when the discriminator occupies the same or an inferior position against the discriminated person and, thus, cannot exploit his/her job position for this purpose), then the violating person can be subject to an administrative fine of up to RUB 3,000 (approx. EUR 34). If a relevant offence has been committed by the company (e.g. if the company refused hiring the person based on his/her sex), it can be subject to an administrative fine of up to RUB 100,000 (approx. EUR 1,120).

Coercion into sexual contact, including the use of a person’s dependent position (which could be relevant for the corresponding case between the employee and his/her manager), is also considered to be a crime in Russia and may lead to the corresponding punishment (up to one year imprisonment). It should be noted that criminal liability in Russia can be imposed only on individuals (companies cannot be held criminally liable in Russia).

In addition, public dishonouring of a person on the basis of his/her sex can be recognised as an administrative offence and lead to imposition of an administrative fine of up to RUB 500,000 (approx. EUR 5,600) on companies and RUB 20,000 (approx. EUR 225) on corresponding company’s officers (who alternatively can also be arrested for 15 days, or charged with community service of up to 100 hours). If the same offence has been repeated by a natural person within one year after this person was imposed with the said administrative liability, he/she could be held criminally liable and, as a result, may be imprisoned for up to 5 years. Additionally, if such an offence was committed by a person with the use of his/her job position, then he/she could be subject to criminal liability (up to 6 years imprisonment) even for a single offence.

An individual can bring an Employment Tribunal complaint of harassment against the employer and against the individual employee who has harassed them. Compensation for harassment is potentially uncapped. While some very high awards are made, the average award for sex discrimination in 2019 was just under £9,000.

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.

Currently, the priority addressed to this matter in Russia sits in the green category. Relevant claims are very rarely filed by the employees, and employers, accordingly, do not consider this to be a major issue in practice.

We would say this currently sits in the red category. We ran a series of events in the UK in 2019 named ‘think tanks on harassment’ and we had a significant number of clients sign up to attend our sessions which highlights the level of client interest. In addition, the fact that the UK Government announced a package of 18 different measures to tackle workplace harassment is evidence that on a political level this issue is a priority issue. It is also an area where industry regulators (like the Financial Conduct Authority) are now taking an active interest which again means it is high up clients' risk agendas.

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 in relevant cases it is usually quite difficult for an employee to prove the acts of discrimination due to a lack of available evidence (unless there is a witness who can confirm the allegations).

In addition, we estimate that the quantity of corresponding claims from employees could possibly slightly increase in the future given that employees become more educated about their rights.

What is particularly interesting about the current position in the UK is that so far there has been no changes to the law; a number of different factors have come and driven recent developments to make that change. The public perception of harassment and the reputational damage it can have on organisations has changed. There has also been some subtle shifts in power towards the harassed individual. Individuals can take to social media and complain not only about an individual harasser’s behaviour but also an organisation’s response to it. Perhaps the biggest concern for many of our clients is whether in fact they have a wider issue which they are not aware of; examples like that involving Google show how issues can (with the help of social media) escalate from an individual employee concern to a global problem in a very short period of time. If clients find themselves in that unlucky position, they want to be prepared and have a positive story to tell of what they are doing in this area.