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.  

Turkish Labour Law ("the Law") obliges employers to protect their employees as part of their duty of care, therefore this also includes protection against harassment. 

Further, the Law deems sexual harassment in the workplace as a reason for immediate termination of employment. Therefore, if an employee who has experienced  harassment at  work and has previously reported the harassment to the employer, and the employer has failed to take the necessary precautions against the harassment, the harassed employee would be able to resign with immediate effect and seek certain statutory payments.  

The Law and the related protection has been in place since 2003.

In addition, the Turkish Code of Obligations also requires employers to establish order in the workplace ensuring that the personal rights of employees are protected. However, the actual implications of this obligation, implemented in 2011, have not been well defined by court decisions  and therefore remain relatively theoretical.  

The Employee Welfare Act of 4 August 1996 prohibits violence, bullying and sexual harassment in the workplace.

Violence in the workplace means any factual situation in which a worker is threatened mentally or physically in performing their work. (The definition of violence is wide enough to include a threat - there is no need for physical violence.)

Bullying in the workplace can involve several similar or different instances of behaviour within the workplace or out of working hours with the aim or result of (i) harming the character, dignity or physical or mental integrity of a worker in the performance of their work or (ii) threatening their job or (iii) creating an intimidating and hostile environment.

Sexual harassment means any form or verbal, non-verbal or physical conduct with a sexual connotation whose aim is to harm someone’s dignity or to create an intimidating and hostile environment.

In 2014, major changes were made to the Employee Welfare Act of 4 August 1996, in order to improve the protections around violence, bullying and sexual harassment in the workplace.

The Social Penal Code punishes anyone who commits acts of violence, bullying and sexual harassment in the workplace. The Social Penal Code is dedicated to criminal actions in the framework of an employment relationship. There is also a General Penal Code for all other criminal actions. Criminal sanctions are applicable in case of workplace violence, bullying or sexual harassment.

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. 

As mentioned above, employers are required to take pro-active action to prevent sexual harassment in the workplace as part of their duty of care to their employees. The obligations under the Code of Obligations explained above may also be considered as prompting employers to take action. However, in practice, Turkish courts would review whether an employer has taken the necessary precautions against harassment once it has been reported by an employee (as opposed to whether the employer took precautions even before the harassment took place).

Yes, they are. All employers must do a risk analysis to determine the risks of violence, bullying and sexual harassment in the workplace and to prevent these risks. All employers must also adopt the necessary measures to avoid the materialization of such risks. Failure to adopt measures is punishable with a sanction of level 2 (namely a criminal fine ranging from 400 EUR to 4000 EUR or an administrative fine ranging from 200 to 2000 EUR). 

Furthermore, employers must ensure that the worker who has been a victim of violence receives the appropriate psychological support from specialised services or institutions.

Finally, all employers must have a health and safety adviser for psychosocial aspects in the workplace. These advisers can be part of the company or of an external service. The adviser is responsible for assisting the employer and covering all psychosocial risks at work.

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.

We have not noticed a significant impact on the number of harassment claims.

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.

In line with the legal remedies mentioned above, the harassed employee would be entitled to lawfully terminate their  employment contract and claim all statutory benefits (among others severance pay, unused holiday pay, pay for any overtime work performed, other outstanding amounts such as bonuses) if the employer has failed to take precautions following the occurrence of a case of harassment.  

Where the employer has failed to prevent harassment and has acted negligently in this respect, the employee may be able to claim non-material damages as well based on the failure of the employer to fulfil its duty of care

Workers who believe they are victims of violence, bullying and sexual harassment in the workplace should be given recourse to a special internal psychosocial intervention procedure that must be set up in all companies and which has to be included as a company policy. 

This internal procedure is regulated by law and must be set up by any employer. In addition to this, victims of violence, bullying and sexual harassment may also bring a criminal action at the police.

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.

For most of our clients, this would be considered a high priority matter, so a red light, assuming that it is intended to show the highest priority.

We would say this currently sits in the red category. 

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.

The Law is the primary source regarding the workplace-related regulations. Further, as mentioned above, the Turkish Code of Obligations also imposes certain obligations on the employer although the actual implications of these remain unclear. 

As for the criminal law aspect of this behaviour, this is regulated under the Turkish Criminal Code. It should also be noted that the criminal law aspect of harassment would not be binding on labour courts which means that even if a suspect is acquitted of criminal proceedings related to a case of sexual harassment, he/she may continue to face labour law sanctions (i.e. termination of employment).

When performing their work, workers may come into contact with people other than workers from their own companies, such as customers, suppliers, students, workers from other companies.

The employer whose workers come into contact with such third parties is obligated to develop a prevention policy that takes into account this specific risk.

When a worker is a victim of violence, sexual harassment or bullying committed by third parties, the employer must ensure that this worker receives the appropriate psychological support from specialised services and institutions.