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 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. 

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).

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.

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.

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 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.

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. 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.

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).

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.