In a recent case, the Eastern High Court had to determine whether the employer of a woman who had been sexually harassed by a colleague was liable for not preventing or dealing with the incident.
According to the Equal Treatment Act, sexual harassment is contrary to the principle of equal treatment between men and women and constitutes discrimination on the grounds of sex. Further, compensation can be awarded to employees whose employers dismiss or subject them to other adverse treatment following a complaint, as this constitutes victimisation.
The case concerned a female administrative assistant at a window cleaning business. In accordance with the employer's guidelines, she helped ensure that all employees annually provided proof that they had no criminal record.
During her employment, a window cleaner at the business sexually harassed her on multiple occasions, both verbally (including text messages and phone calls) and physically.
The window cleaner was eventually dismissed for poor performance. In the lead-up to the dismissal, the employee informed the employer that she had been sexually harassed. The employer, however, waited two weeks before dismissing the window cleaner.
After the dismissal, the employee found out that the window cleaner had recently been convicted of assault against a former partner and had been ordered to perform community service once a week. Instead of informing the employer about the situation, the window cleaner had called in sick on the days in question.
The employee reported this to the employer and was dismissed shortly after. According to her statement, at the same time she had also elaborated on the extent of the sexual harassment. The window cleaner was later convicted on several counts of sexual assault against the employee at her home.
The employee's trade union started proceedings, claiming that the employee was entitled to compensation, partly because of the sexual harassment, which the employer had not prevented, and partly because the employer had dismissed her unfairly when she filed a complaint about the sexual harassment. The union highlighted the fact that the employee had been dismissed the day after she described the extent of the sexual harassment to the employer.
The employer submitted that it had taken several measures to prevent sexual harassment, such as creating clear-cut divisions between the different departments. The sexual harassment had taken place in the private sphere and, therefore, it was not covered by the Equal Treatment Act. Further, the employer argued that the employee had not informed the company management of the sexual harassment; thus, the employer could not be held liable for the sexual harassment.
A part of the proceedings concerned the grounds of the dismissal. The employee's immediate manager explained that the dismissal was based on the employee's omission to inform the employer that the window cleaner had not been ill during his sick days and that he had a criminal record. The employee explained that the manager had told her that she was being dismissed because she was unable to "say no" in her personal and professional life.
Both the district court and, later, the Eastern High Court ruled that the employer could not be held liable for the sexual harassment, as it had taken place outside the workplace and because the window cleaner was not the employee's manager.
However, the employer could be held liable for the sexual harassment that had taken place during working hours, including the offending text messages and phone calls. The High Court noted that the employer had not implemented any measures to prevent sexual harassment, such as a harassment policy. Both courts found that the employee had informed the employer about the sexual harassment before the window cleaner's dismissal and that the employer had still refrained from taking action.
Accordingly, the employee was awarded a compensation 40,000 kroner. The district court did not find that the dismissal was a result of the sexual harassment complaint and, therefore, in violation of the Equal Treatment Act. However, it did rule that the dismissal was unfair.
In the appeal proceedings, the High Court considered that the employer had learned about the full extent of the sexual harassment before the employee was dismissed and that her explanation about the grounds for the dismissal were credible. The employer had not disproven a breach of the equal treatment principle, and the employee was awarded compensation that corresponded to nine months' salary.
The High Court's decision is one of few rulings in Danish case law that deals with discrimination on the grounds of sex in relation to sexual harassment and is a rare case of victimisation.
The courts attached importance to the fact that the employer had not taken any preventive measures, such as establishing guidelines for preventing sexual harassment, and took this into consideration in their assessment of liability. This confirms the employer's duty to take preventive measures and the significance of such measures in possible discrimination claims.
For further information on this topic please contact Christian K Clasen at Norrbom Vinding by telephone (+43 35 25 39 40) or email ([email protected]). The Norrbom Vinding website can be accessed at norrbomvinding.com.