CMS Expert Guide on sexual harassment in the workplace

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.  

Since 1991 sexual harassment has been legally regulated by Legislative Decree 728 as an act of hostility by the employer towards the worker.  From February 2003, (with the publication of The Law on Prevention and Punishment of Sexual Harassment No. 27942 and its Regulations), provisions have been issued with the specific purpose of preventing and punishing sexual harassment produced in any relationship of authority or dependency.

The Government has taken the initiative in this matter, taking responsibility for issuing regulations to prevent sexual harassment at work.  In addition, it is not unusual for this issue to be dealt with in collective bargaining arrangements between trade unions and employers.

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

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).

Law No. 27942 requires employers to maintain conditions of respect among their workers, to train them on the rules and policies against sexual harassment at work and to adopt measures to repair the damage suffered by the harassed and to avoid reprisals by the harasser.

Law No. 27942 and its Regulations, require all employers to establish an internal preventative procedure to be communicated to their workers, to internally investigate complaints that may be made by people who consider themselves victims of sexual harassment at work. If at the end of the investigation, the employer concludes that the worker has harassed another, the employer shall sanction that person according to the seriousness of the facts, with admonition, suspension or dismissal from employment.

If the employer does not initiate the investigation or does not adopt appropriate protection, prevention or punishment measures, or if the harasser is the employer or its representatives, the victim can sue the employer to stop the hostility, or consider himself/herself dismissed claiming the payment of compensation for dismissal, and also demand the damages and losses suffered as a result of the act of sexual harassment.

The victim may request precautionary measures of protection before the investigation is concluded, such as the rotation of the alleged harasser, the temporary suspension of work of the alleged harasser, rotation of the victim, at his/her request, ensuring that the harasser does not approach the victim or his family environment, psychological assistance or other protection measures that guarantee their physical, mental and / or moral integrity.

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

No.

The #MeToo movement does not have much presence or repercussions in Peru, which has probably led to no major concern at national level regarding the issue of sexual harassment at work. This is evidenced by the scarcity of complaints related to sexual harassment at work. Indeed, since 2003, when Law 27942 was enacted, to date, we have known very few cases of complaints.

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

Employers are legally obliged to inform the Ministry of Labour about cases of sexual harassment that occur at the workplace and the result of their investigations.

Besides employers’ legal obligation to inform the Ministry of Labour about cases of sexual harassment and the result of their investigations, the main remedy provided by the law to the victim is to file a complaint with his/her employer so that he may initiate an investigation and punish the aggressor, taking also certain measures to protect the victim.

In addition to this complaint, the law recognizes the following rights of the person who considers herself/himself the object of acts of sexual harassment:

1. She/he is entitled to initiate the following actions against her/his employer:

  • If the harasser is the employer, the victim may sue her/his employer before the courts in order to cease the hostile behaviour, or consider herself/himself dismissed from their employment and sue the employer for compensation for unfair dismissal.
  • The victim may also sue the employer in court by demanding compensation for the damages caused by the act of sexual harassment.
  • The victim may also ask the Labor Inspection Authority to verify the facts, fine the employer and order them to take measures to protect the victim, prevent new similar cases and apply the corresponding sanctions.
  • In cases of complaints filed with the employer for sexual harassment, if the employer or the competent official fails to initiate the investigation or does not adopt the corresponding protection, prevention and sanction measures, the victim may also sue the employer to stop the hostile behaviour or consider himself/herself dismissed from employment and demand the payment of severance pay.

2. It is also possible that the victim criminally denounces the stalker before the Police Authority or the Prosecutor's Office. For this purpose, it should be noted that the law defines as a crime the act of monitoring, persecuting, harassing, besieging or seeking contact or closeness with a person, without her/his consent in order to carry out acts of a sexual nature. The harasser can be punished with a sentence of up to eight years in jail.

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

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.

There are not many complaints about sexual harassment at work. We believe that this is due to the fact that, for various reasons, the victims usually do not come forward in making these complaints. However, where complaints of sexual harassment are received the employers do investigate the matter and where appropriate sanction the workers who were responsible.

In that sense, when a case is reported it has a high priority (red).

6. Any other relevant information on workplace harassment?

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).

In our opinion, concern at national level regarding the issue of sexual harassment at work should increase. Unfortunately, the #MeToo movement does not have much presence or impact in Peru.

The concern of the organisations that defend the rights of the female population in Peru is more linked to the eradication of physical violence against women, coinciding with the concerns of the movement "Ni Una Menos" (Not Even One Woman Less) emerged in Argentina in 2015, specifically against women homicide and violence at home.

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? 

No. 

No.