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.
Swiss law provides for a variety of legal remedies.
Employees who have been sexually harassed may suspend their work, and employers must continue to pay their salary during the suspension period.
Victims of sexual harassment may also lawfully terminate their contract of employment with immediate effect. In such cases, employees are entitled to damages equivalent to the amount they would have earned had the employment relationship ended after the ordinary notice period (usually 3 months).
Besides suspension and immediate termination of employment, victims of sexual harassment may bring an action against employers before the competent conciliation board, a court or the administrative body. To this effect, they may apply for an order prohibiting or stopping threatened sexual harassment, requiring sexual harassment to cease and confirming that sexual harassment is taking place if it is continuing to have a disruptive effect. On top of that, they may apply for compensation if the employer did not take sufficient measures to prevent sexual harassment. Such compensation may amount to up to six times the average Swiss monthly salary. In addition, victims may claim damages and satisfaction.
Employees may challenge a dismissal as a result of making a complaint of sexual harassment to their manager, or because of their initiation of legal proceedings. Remedies includes interim relief or compensation of up to six months’ salary within 180 days after termination of employment. Civil claims can also be brought against the harasser, and they may ask the court for injunctive relief as well as claim damages and satisfaction. The employee may also bring a criminal charge against the harasser.
In cases of sexual harassment perpetrated by the employer, the employee has the right to terminate the relationship immediately without notice (resignation for just cause).
In addition the employee can bring a civil claim against the harasser and also against the employer to obtain compensation for damages suffered if the employee can prove that the employer was aware of the harassment and no action has been implemented to stop it.
An employer receiving a complaint of sexual harassment by an employee should carry out a prompt and accurate investigation. If the allegation is established, the employer should take appropriate disciplinary action against the harasser, including dismissal depending on the seriousness of the case.
Furthermore, the employee who takes legal action for sexual harassment discrimination cannot be penalised, demoted, dismissed, transferred or subjected to any other organisational measure having direct or indirect negative effects on working conditions. The retaliatory or discriminatory dismissal of the complainant is null and void.
With regard specifically to the judgment and the quantification of the damage suffered by the victim of sexual harassment, the judges have to assess both the consequences suffered in the “moral sphere”, both the impact on the dynamic-relational level of the victims’ life.
In this view, the Court will have to increase the extent of compensation in case of harmful consequences that can be considered abnormal, exceptional and/or totally peculiar. Then, the judge will have to make an independent evaluation about the internal suffering of the employee due to the violation of the right to health. Therefore, both biological damage and subjective moral damage will have to be compensated, as autonomous items (so called non-pecuniary damage).