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 legal definition of harassment can be found in the Act No. 365/2004 Z. z. on Equal Treatment in Certain Areas and Protection against Discrimination (the “Anti-Discrimination Act”). It is defined as: “verbal, non-verbal or physical conduct of a sexual nature, the intention or consequence of which is or may be a violation of person’s dignity and which creates an intimidating, degrading, disrespectful, hostile or offensive environment”.

The definition of the term “sexual harassment” was incorporated into the Anti-Discrimination Act in 2008.

The Slovak Labour Code does not include the term "sexual harassment" but sexual harassment falls under the legal definition of s 13 (1) of the Slovak Labour Code of discrimination.

The Slovak Criminal Code does not directly recognise the term "sexual harassment", but in certain circumstances sexual harassment may result in the suspicion of committing one of the crimes against freedom as well as human dignity (e.g. stalking).

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).

In employment relations, the employer is obliged to treat employees in accordance with the principle of equal treatment established by the Antidiscrimination Act. Although there is no specific set of rules regulating the steps that private sector employers must put in place to prevent harassment in Slovakia, responsibilities of employers may be derived from general principles stipulated by the Labour Code. For example, employees have the right to fair and satisfactory working conditions and to associated protection. Furthermore, employers must create favourable working conditions and a safe working environment which enable employees to achieve the best possible performance at work. Therefore, in order to avoid liability  in relation to the actions of employees who harass their colleagues (e.g. due to failure to create a favourable working conditions and safe working environment), the employer should put in place a system known as taking reasonable steps, which includes training, policies and a preventative approach. 

In accordance with s 13 (6) of the Slovak Labour Code, an employee shall have the right to submit a complaint to the employer in connection with the infringement of any rights and obligations. The employer shall be obliged to respond to such a complaint without undue delay, make enquiries, (and depending on the facts) and/or remedy the consequences. 

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.

No, there has been no reports of an impact on the number of harassment claims against our employer clients as result of the #MeToo movement.

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

An employee who has been a victim of sexual harassment could pursue the following remedies: 

  1. file a complaint and call on his/her supervisor to seek redress,
  2. address a trade union,
  3. lodge a complaint with the relevant labour inspectorate,
  4. raise legal proceedings, 
  5. make a criminal complaint, or
  6. make a complaint with the Slovak National Centre for Human Rights, which can represent the concerned employee before court free of charge.

An individual can bring an action of harassment in a civil court and claim financial and non-financial damages against the employer and the individual employee who harassed him/her. In court, the employee can demand that the harasser refrains from his/her actions (e.g. stops the harassment  and, if possible, they should remedy their unlawful conduct or ensure that adequate satisfaction is given (e.g. an apology). If the adequate satisfaction is not sufficient, then the employee may also claim compensation for non-financial damage. The amount of non-financial damage is not fixed, it is evaluated on a case-by-case basis according to the intensity of the sexual harassment, the after-effects caused by the sexual harassment, as well as other factors.

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 amber category. In Slovakia, this topic has gained importance, it is increasingly discussed publicly, and activities are being developed. Such activities - pursued by third sector and often funded by government authorities and EU funds - are aimed at informing the public on their rights. There are websites promoting information and advice in terms of sexual harassment (including other forms of discrimination), such as www.gender.gov.sk or www.zastavmenasilie.gov.sk. Furthermore, victims of sexual harassment can address requests for legal assistance to the Slovak National Centre for Human Rights. It provides free legal advice in terms of sexual harassment and other forms of discrimination and may represent employees in legal cases. Although, as of now sexual harassment legal cases are not common in Slovakia, it is advisable to proactively maintain policies preventing sexual harassment in the workplace, as the legal grounds for pursuing employees’ claims exist and it might be only a matter of time before harassment claims become more common.

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).

The degree of tolerance for everyday sexism varies in different cultures. In Slovakia, tolerance for sexism is relatively high. 

In advertising, disrespectful behaviour towards women in the media occurs on a regular basis, therefore women often tolerate such behaviour and consider it to be “the norm”. For that reason, there are not many legal cases  in Slovak courts for victims of sexism, which would seek to protect their rights.

Portrait of Natália Jánošková
Natália Jánošková
Associate
Bratislava
Portrait of Martina Šímová
Martina Šímová
Senior Associate
Bratislava