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.