CMS Expert Guide on sexual harassment in the workplace

From a Swiss perspective, the term sexual harassment in the workplace covers any behaviour with a sexual aspect or based on gender that is unwanted by and humiliating to the recipient.

Employers are under an obligation to ensure that employees are not sexually harassed, and that any victim of sexual harassment suffers no further adverse consequences: (art. 328 para. 1 of the Code of Obligations).

Swiss law also provides for an express prohibition of discrimination through sexual harassment in the workplace, which includes in particular threats, the promise of advantages, the use of coercion and the exertion of pressure in order to obtain favours of a sexual nature (art. 3 of the Gender Equality Act 1995).

In addition, administrative law imposes the obligation on employers to take the measures necessary to protect the employee's personal integrity, which includes measures against sexual harassment under the Equality Acts.

Sexual harassment may result in a prosecution. Depending on the severity, a fine, a monetary penalty or a custodial sentence may be imposed.

It is also worth mentioning that various collective bargaining agreements set out provisions prohibiting 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.

Under the Dutch Working Conditions Act (1999) (in Dutch: Arbeidsomstandigheden wet) (“the Act”) employers are obliged to create a safe and healthy working environment for their employees. The Act applies to all employers and employees in the Netherlands. The Act also applies to international employers who have employees working in the Netherlands. Both the employer and employee are subject to statutory obligations, as both parties are responsible for health and safety at work. The specific rules for employer and employee to ensure a healthy and safe workplace are further laid down in the Working Conditions Decree (in Dutch: Arbeidsomstandighedenbesluit).

Regarding sexual harassment in the workplace, employers are required by the Act to prevent and/or limit inappropriate behaviour (discrimination, sexual intimidation, aggression and violence and bullying).

The Act states:

"The employer shall operate a policy aimed at preventing employment-related psychosocial workload, or limiting it if prevention is not possible, as part of the general working conditions policy" (article 3, sub 2 Dutch Working Conditions Act).

Employment-related psychosocial workload is being described as: "the factors direct or indirect distinction, including sexual intimidation, aggression and violence, bullying, and work pressure, in the employment situation that cause stress" (article 1, sub 3e the Act).

Furthermore a general prohibition on sexual harassment by the employer is included in the Civil Code under article 7:646 Dutch Civil Code and article 1a of the Equal Treatment Act (1994) which states that "sexual harassment  is understood: any form of verbal, non-verbal or physical behaviour of a sexual nature of which the purpose or effect is the violation of a person's dignity, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment".

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

Yes. Employers are not only obliged to intervene where sexual harassment occurs but they also have to prevent sexual harassment in the workplace in order to fulfil their duty of care and comply with the various legislative requirements to take all adequate and reasonable measures necessary to prevent sexual harassment.

The State Secretariat for Economic Affairs recommends implementing, in particular, the following measures:

  1. Employers should have in place a document outlining the principles (i.e. a policy document), containing (at least) a declaration of principles, in which the employers state that they are firmly opposed to sexual harassment and will not tolerate it, a definition of sexual harassment (including examples), the offer of support for victims (including the name of a contact person), and the sanctions that perpetrators of sexual harassment will face. This document must be communicated to all employees orally and/or in writing;
  2. Employers should appoint a trustworthy, respected, impartial and credible contact person within or outside the company who can support victims in need of help or advice. Ideally, there should be two contact persons, one of each gender. It must also be taken into account that such a contact person should be properly trained; and
  3. Employers must take any other reasonable preventive measures. For instance, they should ensure that pornographic material is not shown or displayed in the workplace and that employees who make comments and jokes about sexual characteristics, sexual behaviour or sexual orientation will be spoken to and told to stop doing so.

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.

Employers are legally obliged to prevent any form of sexual harassment. To be able to do this properly, employers are required to map out all occupational health risks, including sexual harassment, in a Risk Inventory and Evaluation Plan (RI&E plan) (article 5 of the Act). Once these risks are in scope, the employer is obliged to prepare a so-called Plan of Action which is based on the RI&E. The Plan of Action must include what the company is going to do to prevent identified risks and within which timeframe. Employees should be informed about the Plan of Action, about the risks and measures to be taken by the company. The employer must demonstrably carry out all these actions.

In the context of the Act, the Inspectorate SZW supervises, among other things, psychosocial work risks, including sexual harassment. In the event of a (suspicion of) violation or abuse, employees, representatives of a trade union, works council and/or staff representation can submit a complaint to the Inspectorate SZW. As a rule, an investigation follows. An investigation by the Inspectorate SZW is aimed at tracing the cause, cancelling the violation and preventing a recurrence.

Employers are legally obliged to provide a safe working environment for their employees and must have adequate complaint procedures and disciplinary protocols in place. In the case of a sexual harassment complaint filed against an employee, employers should strictly follow their own internal procedures and protocols and should not always choose (instant) dismissal as a sanction. This obviously starts with employers ensuring that the company has a policy against (amongst others) sexual harassment which clearly sets out the definition of sexual harassment, who can file a complaint, with whom and how the complaint will be handled. The employer should actively share such policy with employees and educate management in order for them to recognise and prevent deviating behaviour. The policy should also include disciplinary sanctions which can vary depending on the severity of the complaint filed and other relevant facts such as the persons involved and even the culture of the company. The Inspectorate SZW advises companies to appoint an independent complaints committee that can monitor and handle complaints. In practice companies usually opt for an internal committee or individuals who are designated to handle complaints and tend to involve lawyers to support the further handling of these types of complaints.

3. Has the #MeToo movement had a noticeable impact on the number of harassment claims against your employer clients?

We have not been aware of a considerable increase in claims against employers as a result of #MeToo. The number of enquiries to specialist/advisory bodies increased in 2017, shortly after the launch of the #MeToo movement. However, the number of enquiries has now returned to a normal level. Swiss prosecuting authorities have seen very little change in the number of inquiries and criminal complaints. On the other hand, it seems that awareness of sexual harassment in the workplace is rising on the part of employers. We have seen a sharp increase in the demand for further training on the subject of sexual harassment and its prevention.

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.

We have seen that the #MeToo movement has led to an increased interest in the way employers react to sexual harassment scandals in the workplace. Because of the #MeToo movement, more and more people are empowered to come forward and raise issues at their companies or organisations.

Also notable is the continued media focus on how Dutch courts rule in the situation that an employer and employee end up in court in the event that the employer wishes to terminate the employment agreement due to improper (sexually-related) conduct at the workplace. Based on case law, it can be concluded that such behaviour does not necessarily lead to harsh rulings on employees who are accused of sexually improper conduct for various reasons. These cases also show that employers should ensure proper policies regarding sexual harassment-related behaviour and complaints within their organisation are in place and ensure they comply with these policies.

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.

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.

Based on the law, an employee who has suffered from sexual harassment may claim compensation from the offender or employer under civil law. Compensation for harassment is potentially uncapped although the Netherlands is not known for its claim culture. In practice these types of claims are made by the employee against the employer where there is also a claim regarding the termination of employment. This may be the case if an employee is able to substantiate that she/he has become sick because of (for example) sexual harassment conducted by a colleague and the employer has failed to adequately protect the employee and/or handle the claim properly. Furthermore, an employee can file a complaint at the Inspectorate SZW and they may take further action against the employer.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?

Amber.

Although awareness of the issue of sexual harassment in the workplace has grown and the demand for specialised training for companies is increasing, tackling sexual harassment does not seem to be a top priority for employers. This may be against the background of Swiss law already having prescribed the implementation of measures against sexual harassment at an early stage, i.e., long before the #MeToo movement, and this has already become established corporate practice.

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.

As we are seeing more and more cases with different rulings in case law, we would say that it currently sits in the red category for clients in the Netherlands.

6. Any other relevant information on workplace harassment?

Employees bear the burden of proof with regard to sexual harassment in the workplace. In this regard, a recent parliamentary initiative aimed to reduce the burden of proof in the context of sexual harassment in the workplace. This initiative was rejected. However, the Swiss Parliament is currently discussing whether a new study on sexual harassment in the workplace should be carried out (since the last study dates back to 2007/2008). This must be seen against the background of the Istanbul Convention Against Violence Against Women and Domestic Violence of the Council of Europe entering into force in Switzerland on 1 April 2018 and requiring members of the convention to collect statistical data on sexual harassment cases. A member of the Swiss Parliament recently requested the launch of a national prevention campaign against sexual harassment as well as the implementation of an action plan for the prevention of sexual harassment, which includes educational measures and training in companies. To date, this has not yet been discussed by the Swiss Parliament. The International Labour Organisation (ILO) is currently considering a new convention on the ending of violence and harassment in the working environment. The outcome is still unclear but could also affect Switzerland as a member of ILO.

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.

It should be noted that due to the #MeToo movement and the increase of people coming forward about sexual harassment, the Netherlands is contemplating the introduction of stricter criminal laws around sex crimes. Based on a new legislative proposal of Minister Ferdinand Grapperhaus of Justice and Security, one can be punished under criminal law if you know the other person did not want to have sex, and if you could have known that. When in doubt, the person initiating sexual acts has the duty to ask whether the other person is okay with what is happening.

7. Are you aware of any sectors which have been particularly affected by, or concerned with, harassment? For example, where reports of complaints are high, or the media have exposed an issue, or regulators are taking action?

In Switzerland, there has not been a particular focus on this issue within any specific sector.

No. To the best of our knowledge there are no specific sectors particularly affected by, or concerned with, harassment.

As in many other countries the media industry has experienced a number of complaints. We are aware of the fact that the Inspectorate SZW has reached out to companies in the IT sector to verify whether their RI&E plan is in place, not specifically related to sexual harassment but to all types of behaviour that can cause stress with employees.