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 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?

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.

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?

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

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.

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?

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.

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?

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.

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.

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.

Media and financial services.

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