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 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?

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.

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?

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.

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.

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 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?

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 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?

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.

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.

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.