International Law at Work: Harassment and Bullying

Austria China Czech Republic France Germany Hungary Netherlands Poland Singapore Slovakia UK Ukraine What is harrassment? Is there a legal definition of harassment? The Austrian Act on Equal Treatment (Gleichbehandlungsgesetz) stipulates that nobody shall be treated disadvantageously based on his or her gender, age, ethnic origin, religion or belief, sexual orientation or disability. Any action that is to be seen as discrimination on these grounds – direct or indirect – falls under the terms discrimination and harassment. According to the Special Provisions on Labour Protection of Female Employees of 2012, employers shall prevent and stop sexual harassment towards female employees at the work place (not male employees). No further definition is provided. “Violence, threats or illegal restrictions of personal freedom” allow employees to unilaterally terminate their labour contract without a notice period. One express definition of sexual harassment is found in a new 2017 Shaanxi provincial regulation as “harassing acts towards a woman which are against her will, contain obscene content or sex related demands, in the forms of words, texts, pictures, electronic information, or physical acts.” Harassment is an undesirable behaviour on grounds of race, ethnic origin, nationality, sex, sexual orientation, age, disability, religion, belief or opinion, the intent or effect of which is to reduce the dignity of a person and to create an intimidating, hostile, humiliating, or offensive environment; or which may legitimately be perceived as a condition for decisions affecting the exercise of rights and obligations arising out of legal relationships. Yes, the French Labour Code provides legal definitions of moral harassment and sexual harassment. „ Moral harassment: repeated actions which aim or result in deterioration of his/ her working conditions that may affect his/her rights and dignity, alter his/her physical or mental health or jeopardize his/her professional future. „ Sexual harassment: (i) repeated sexual remarks or behaviours that offend his/her dignity due to their degrading or humiliating nature, or that create an intimidating, hostile or insulting situation; (ii) all kinds of pressure, even if not repeated, that aim to obtain a sexual action for the benefit of the perpetrator him/herself or a third party. Yes. Under the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG). “Harassment” is defined as any objectionable behaviour connected to a protected characteristic (race, ethnic origin, sex, religion, ideology, disability, age or sexual orientation) that aims to cause or causes injury to the dignity of the person concerned, and that creates an environment of intimidation, hostility, humiliation, debasement or indignity. There is also a definition of “Sexual Harassment” under the AGG. Based on the Equal Treatment Act, harassment is “a conduct violating human dignity related to the relevant person’s characteristic with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around a particular person.” This is a broader definition than the one used in the EU Directive Nr. 2002/73/EK. No, not specifically. This term is included in the more general statutory term of psychosocial work stress (included in the Working Conditions Act). Psychosocial work stress includes the factors direct or indirect discrimination, including sexual harassment, aggression and violence, bullying and work pressure within the situation of work that cause stress. The Working Conditions Act includes a duty of care for employers to prevent and/or reduce psychosocial work stress. Some terms are explicitly legally defined in the law, such as sexual harassment. This term is included in the equal treatment legislation. Article 183a of the Labour Code specifies that employees should be treated equally in employment. Equal treatment in employment is defined as prohibition of any discrimination, direct or indirect. Discrimination within the meaning of § 2 includes any action which encourages another person to violate the principle of equal treatment in employment. The Labour Code also highlights sexual harassment as a form of harassment, and sets out a thorough definition of discrimination on the grounds of sex. No, not stipulated in Protection from Harassment Act 2014 (“POHA”). Yes – the Act on Equal Treatment in Certain Areas and Protection against Discrimination has both a general definition of harassment, and a definition of sexual harassment. Yes – there are three definitions under the Equality Act 2010: „ the “General” definition: X harasses Y if X engages in unwanted conduct related to a relevant protected characteristic which has the purpose/effect of violating Y's dignity, or creating a hostile, degrading, humiliating or offensive environment for Y. „ “sexual harassment”: X harasses Y if X engages in unwanted conduct of a sexual nature, and the conduct has the General definition purpose/effect. „ X harasses Y if: (1) unwanted conduct of a sexual nature or that is related to gender reassignment/sex; (2) the conduct has the General definition purpose/effect; (3) because of Y's rejection of or submission to the conduct, X treats Y less favourably. Sexual Harassment is defined in Ukraine's law “On ensuring equal rights and opportunities for women and men”. What types of behaviour could constitute harassment (examples)? Sexual conduct, which affects the dignity of the harassed person or is inappropriate or unwanted; establishment of an intimidating, hostile or humiliating working environment; tolerance of a sexual conduct of colleagues, third parties. A local 2012 regulation of Baotou mentions: „ teasing or making fun of a woman; „ deliberately tearing and taking off the clothes of a woman „ deliberately touching the body of a woman „ harassing a woman through words, texts, pictures. Picking on co-workers, making them do unnecessary, demeaning tasks, pointing out someone’s aforementioned characteristics repeatedly with the intent to ostracize them, using derogatory names, whistling at someone, making unsolicited remarks about someone’s appearance. There are no legal examples. In practice, these could include: „ Moral harassment: unjustified criticism/ warnings, public humiliation, aggressive behaviour, bullying, isolation. „ Sexual harassment: improper gestures, sending of sexual messages, proposing sexual relationships in exchange for professional promotion. Male employees making suggestive remarks in the presence of a female colleague, or sending her e-mails with pornographic content. Incessant racist remarks or verbal abuse by colleagues or superiors in the workplace on grounds of a certain ethnic origin. Racial, sexual, age or disability harassment,bullying, illicit separation, revenge and mobbing. Further: Bossing (e.g. giving harder tasks to an employee with the purpose to humiliate her/ him), staffing (e.g. intrigue due to non-acceptance of a new boss), stalking, defaming, Hightech-mobbing (deleting or exchanging of documents, sending e-mails in the name of boss without permission). Psychosocial work stress includes “undesirable behaviour” which is the more general term used in the Netherlands, and could consist of bullying, (sexual) harassment, aggression and violence and discrimination. Harassment could be frightening or pressuring an employee by psychological or physical abuse or by threatening with for dismissal or other sanctions. Direct and indirect discrimination includes any action which encourages another person to violate the principle of equal treatment in employment or an instruction to violate that principle or any unwanted conduct with the purpose or effect of violating the dignity of an employee and creating an intimidating, hostile, degrading, humiliating or an offensive environment. Threatening, abusive, or insulting words, behaviour or communication; sexual harassment; unlawful stalking. Ironic or inappropriate comments, offensive gestures, inappropriate facial expressions, inappropriate jokes, gossip, or physical conduct of a sexual nature. Spoken or written comments about someone else which are offensive, physical gestures, facial expressions, jokes/ pranks and threats or abuse. “Sexual harassment” acts of a sexual nature, expressed verbally or physically, humiliating or offending persons who are in a labor, service, material or other subordination relationship. Are individuals protected from harassment based on someone else's protected characteristic (i.e. harassment by association or perception)? No – individuals can only claim harassment/discrimination if they are harassed/ discriminated against on an individual basis. Not currently. Harassment by association is not explicitly regulated by Czech law; however, certain instances of harassment by association can be subsumed under the provisions about general harassment or discrimination. Under French law, any behaviour that specifically aims or indirectly results in harassing someone if prohibited. Therefore both harassment by association or by perception are outlawed in France. Yes. The General Equal Treatment Act explicitly states that harassment by perception is unlawful. Harassment by association will be unlawful where someone is discriminated against, and they are related (children but also other relatives) to a person with a protected characteristic. The protection also applies to a group of people with similar characteristics, as well as companies and other organisations. The Equal Treatment Authority is entitled to start proceedings in the protection of an insulted group of people (so not every person must be insulted separately; if the person is member of the insulted group, s/he will also be considered as having been insulted). No, generally not, but of course all relevant circumstances are taken into account when determining whether or not harassment has taken place. Not specifically, but such harassment may qualify as unlawful based on general rules. Not expressly provided for in POHA. Yes – there is a definition of discrimination by association based on a relationship to a person with a protected characteristic. Discrimination occurs regardless of whether it is based on fact or a wrong assumption. Yes – UK law now covers harassment based on “association and perception” There is no legal basis for such protection. Can a one-off incident amount to harassment? Yes. Possibly, but will depend on the individual case. Yes, the law does not require a certain number of incidents to occur before it can be considered harassment. No, the French Labour Code requires the existence of “repeated” actions of harassment. However, when the situation concerns sexual harassment, repetition is not required. Yes in cases of sexual harassment or racist remarks, one single action is sufficient. Yes. Interestingly though the Hungarian Criminal Code also has a definition for harassment (related to private life), and one of the main conditions there is regularity. Yes. Generally no – workplace harassment requires persistent and long-term bullying behaviour (Article 943, Labour Code). Nevertheless even a one-off incident may amount to sexual harassment. Yes. Yes. Yes. There is no legal regulation with respect to this issue. Does the complainant need to have made clear that the conduct was unwanted to qualify as harassment? No. Under some local rules, “against the will of the woman” is an element in the definition of “sexual harassment”. See our comments under the “definition” part above. No; even though an express indication of resentment can make it very clear that the unsolicited behaviour constitutes harassment, one does not have to defend oneself verbally or otherwise in order for the incident to be considered harassment. No, however any evidence that the complainant made clear the conduct was unwanted will help in shifting the burden of proof to the employer. No. The complainant must only show that it is likely that the harassment has happened. The burden of proof will be on the side of the other party, she/he will be obliged to prove that his/her conduct has not breached the law. No, not specifically, but of course this could strengthen the case and/or could make it easier to substantiate the case of undesirable behaviour. No. No. No. No. The complainants need to prove that conduct was offensive or humiliating to qualify as sexual harassment. What is bullying? Is there a legal definition of bullying? No. Not currently. No; there are only legal definitions of direct and indirect discrimination and harassment. What is termed bullying would be encompassed by the broader term harassment. No. French Law does not distinguish between “harassment” and “bullying”. Only the notion of “harassment” exists which is wider in France than in the UK. Yes – the systematic, consecutive build-up of hostility, harassment or discrimination of employees amongst each other or by superiors (Bundesarbeitsgericht – BAG). However, there are no special rules for dealing with bullying and no independent legal base for claims. No. No, not specifically. This term is included in the more general term of undesirable behaviour. Bullying is not directly defined in Labor Code, but art 943 of the Labor Code states that a long-term bullying is a form of harassment. No, not stipulated in POHA. No, however such conduct may still constitute the offence of intentionally harming another in order to cause him/ her damage. No, and there is no express prohibition. Bullying could include any form of abuse or intimidation. There is a legal definition of “family bullying” in the Family Code of Ukraine. What types of behaviour could constitute bullying (examples)? - - Due to a lack of legal distinction, examples of bullying correspond to examples of harassment. - An employee being constantly interrupted in meetings; a supervisor avoiding contact with employee or not assigning any work to an employee over several months; or the supervisor only assigning tasks above an employee’s qualifications in order to discredit the employee. Forms of psychological and/or physical harassment including unmerited criticism, isolation, gossip, changes to job duties that are detrimental, essential information withheld, or behavior that is intimidating or demeaning. “Bullying” can be described as repeated undesired negative behaviour against which someone cannot defend oneself. Bullying can be direct (belittling or humilitating remarks, constant criticism, physical threats) or indirect (excluding or spreading false rumours). Persistent and long-term actions to humiliate, ridicule and consequently reduce the sense of value of the employee, which could be psychological and physical violence towards an employee. Threatening, abusive, or insulting words, behaviour or communication; or cyberbullying e.g. posting vulgar messages on a website. Threats, intimidation, derogatory remarks, social exclusion, gossip. Physical or psychological threats, overbearing and intimidating levels of supervision, or inappropriate derogatory remarks about someone's performance. Family bullying constitues intentionally committing any physical, psychological or economic action, which could have caused or has caused damage to physical or mental health. International Law at Work: Harassment and Bullying Austria China Czech Republic France Germany Hungary Netherlands Poland Singapore Slovakia UK Ukraine Liability for actions of third parties Can an employer be vicariously liable for unwanted treatment by employees towards their colleagues and, if so, is there any defence available? Yes, if the employer is aware of the incident and does not take appropriate remedy/redress measures. No, but employers bear tort liability for any injury or damage caused to “other persons” by their employees or agency workers in the course of their work. The employer bears a general compensation obligation in case his violation of the regulations infringes on employee rights and thereby causes “harm” (损害) to a female employee. Under the Czech Labour Code, employers are obliged to ensure equal treatment of all employees in terms of their working conditions, remuneration, benefits, training and opportunities for career advancement. Harassment disrupts equal working conditions. If a worker is harassed at the workplace, the harassment should be reported to the employer. If the employer fails to remedy the situation, the employee may sue the harasser or the employer for non-material damage. Yes, employers can be liable for harassment committed by an employee. The employer is automatically responsible if the judge confirms the existence of the harassment (as, under French Law, the employer is bound by the obligation to ensure the protection of his/her employees’ health and security), except if the company manages to prove that all (i) preventive measures have been taken in order to limit such harassment, and (ii) necessary measures in response to the harassment revealed. Yes, an employer can be liable for infringing acts by managers and members of the managing or supervisory board as well as of employees as every employee has the right to be protected by their employer. Employers have legally mandated organisational obligations, including taking necessary measures in order to protect against discrimination. The employer needs to prove that he/she did anything possible to avoid inappropriate behaviour and that he/she is not responsible for the breach of duty. No. An employer could be liable for failing in its duty of care (to have a company free from undesirable behaviour). The employer’s defence could be that the employer has complied with his duty of care or that the damage is substantially caused by intent or deliberate recklessness of the employee. Yes, article 943 of the Labor Code in § 1 states that the employer is obliged to prevent mobbing. An employee whose health has deteriorated as a result of harassment at work may claim a sum of money from the employer as financial compensation for the damage suffered. In addition, as if an employee has terminated his/ her contract of employment as a result of harassment at work may claim damages from the employer at least equal to the amount of the minimum statutory wage. Not expressly provided for in POHA. Yes, the employer must guarantee favourable working conditions and health and safety protection at work, therefore the employer is liable for unwanted treatment happening in the work place. Yes – employers may have a defence where they can show that they took “all reasonable steps” to prevent an employee from doing so. There is no liability provided by the law of Ukraine. Can an employer be vicariously liable if an employee is harassed by a third party such as a customer, service provider or visitor? Yes, if the employer is aware of the incident and does not take appropriate remedy/redress measures. No. The same applies in the case of harassment from a third party. Yes, some case law has considered that the employer can be liable for harassment committed by third parties (client, employer’s relative, etc.) towards employees. Yes. Employees must also be protected against discrimination by third parties, such as customers. No. The employer has to ensure the conditions of safe and undisturbed work; however, this is a labour law issue, not an issue of equal treatment. As above, an employer could be liable for failing in its duty of care, and the defence could be compliance with this duty or that the damage was caused by intent/deliberate recklessness. No direct liability but an employee can argue that an employer's reaction (or failure to react) to such behaviour constituted harassment or discrimination. Not expressly provided for in POHA. No direct liability, however as mentioned above, an employer has a duty to provide favourable working conditions and health and safety protection at work. No direct liability but an employee can argue that an employer's reaction (or failure to react) to such behaviour constituted harassment or discrimination. There is no liability provided by the law of Ukraine. Practicalities Does an employer need a specific policy to deal with bullying and harassment in the workplace? This is not mandatory. This is recommended, especially due to the lack of detailed statutory regulations. Such policy could be a separate policy or part of other internal rules and regulations of the employer such as the “Employee Handbook” which is very common in China. Having a detailed policy including sanctions in case of violations validly set out in internal regulations also significantly increases the enforcement possibilities for the employer. The law does not require adoption of such policies; however, such measures are very advisable as they may prevent a lot of potential incidents and may limit the employer’s liability in case harassment or discrimination in the workplace does occur in spite of a code of conduct prohibiting such behaviour. The employer must inform the employees about all undertaken measures. No, he/she does not. French employment law does not oblige companies to implement specific policies to deal with harassment issues. No. But bigger companies tend to have policies or works council agreements which address these issues in the context of the workplace conduct, e.g. implementing anti-harassment and bullying policies, which set out the types of conduct that are prohibited and the procedure for reporting any incidents of bullying or harassment; and providing anti-bullying trainings/workshops for managers and other executives/supervisors. The employer is entitled to issue a Code of Ethics, with information on how to behave at workplace, reflecting the company’s culture. In case of some professions requiring membership in a chamber, such chamber can have a general Code of Ethics (e.g. in case of attorneys). A breach of either type of Code shall lead to disciplinary measures. Sometimes the employment contract contains provisions regarding work ethics and behaviour. Yes. An employer is obliged to pursue a policy regarding the prevention and limitation of psychosocial work stress (undesirable behaviour). Labor Code does not state that a specific policy regarding preventing harassment is required, but in connection with a fact that an employer should prevent harassment/ mobbing, counteracting makes sense if individual regulations and the resulting actions in the organization are geared towards prevention. That being said, in many larger employers, anti-mobbing provisions are included/should be included in work regulations. No, not required by POHA or other statutes. No legal obligation but it is common for larger employers to have such a policy. No – but it is common for larger employers to have such a policy, in addition to the standard grievance procedure. No, but it is common for major international companies to have internal policies regarding harassment and bullying. Are there any other documents to bear in mind when dealing with bullying and harassment claims? No, but employer information and/or guidelines, policies, etc can potentially have a positive impact in a harassment case and can potentially prevent vicarious liability. No. There can also be other documents pertaining to the regulation of behaviour in the workplace, such as affidavits or concise guidelines that the employees may have signed when entering the workplace. These are also ways of ensuring that the employees are aware of the company’s position on ethics and desirable conduct in the workplace. The sole obligation binding companies (with at least 20 employees) is to copy within their internal regulations document (“réglement intérieur”) the provisions of the French Labour Code related to moral and sexual harassment and display this document within their premises. No. The Equal Treatment Authority published an information paper on dealing with harassment with special focus on prevention and rights enforcement, which it is recommended that employers use. The employer should draft a hazard identification and risk assessment in which undesirable behaviour is included. The employer is obliged to provide employees with written documentation regarding the legal provisions concerning equal treatment in employment. This can be announced (published) in the office, or provided in other standard method used by the employer (e.g. on intranet). There are three relevant documents: The 2015 Tripartite Advisory on Managing Workplace Harassment, which focuses on preventive and remedial measures for workplace harassment; The 2017 Tripartite Standards for Grievance Handling; and The Grievance Handling Handbook published by the Tripartite Alliance for Fair Employment Practices. The Labour Code. The ACAS Code of Practice on Discipline and Grievance. No. Should any anti-bullying and harassment policy be contractual or noncontractual? No contract required. A form of validly established, non-contractual internal regulation is recommended. This not only increases enforcement chances, but also leads to more flexibility regarding future updates and amendments. Policies are usually issued in the form of internal regulations which bind the employees as well as the employer based on their contractual relationship. If any anti-harassment policy is drafted (via an internal note (“note de service”)) and implemented, it will not have to be countersigned by employees but nevertheless be enforceable. In order for rules to bind the employees (which then can also lead to disciplinary matters due to breach of these rules), they should be contractual. Non-contractual. The policy regarding undesirable behaviour does not have to be contractual (part of the employment agreement). Non-contractual, allowing the employer to update the policy more easily and avoid contractual claims in response to a breach. Should be contractual to the extent that breach of the policy may result in summary dismissal without notice under employment terms. Non-contractual. Non-contractual, allowing the employer to updated the policy more easily and avoid contractual claims in response to a breach. There are no specific legal requirements, however, usually it is a non-contractual internal policy, communicated to employees What kinds of steps should an employer take if an employee is found to have been bullied or harassed? Full disclosure of the incident; measures to prevent future harassment; (labour law) actions against the harassing employee (including dismissal with immediate effect under circumstances). 1. Follow the complaints procedure set out in the Employee Handbook or in similar internal rules, and consider seeking legal counsel; 2. Sufficiently document the allegation of the employee being bullied / harassed, including securing all available evidence in judiciable form; 3. Conducting the required investigations and interviews to verify the facts and sufficiently document the results in judiciable form; 4. Decide actions and sanctions according to statutory laws and internal rules of the employer. The employer should immediately take action. They should investigate the whole matter, collect evidence, and document all subsequent steps taken. If an instance of harassment seems likely to have happened, the employer should reprimand the perpetrator in written form, and warning them of possible consequences of such behaviour, including dismissal. The employer may change the working conditions so that the victim is separated from their harassers until the situation goes back to normal. As the employer is bound by the obligation to ensure the protection of employees’ health and security, they have to take all necessary measures to assess the situation and stop any harassment. „ In practice, this includes: „ listening to the facts described by the harassed employee; „ undertaking an internal enquiry; „ taking disciplinary measures. Fully investigate every incident, document all steps and meetings that have been held with all persons involved. After the investigation, decide whether there is the need to take disciplinary action which can range from a verbal warning to a termination without cause in severe cases. Employers must ensure a safe and peaceful working environment, so if it comes to the knowledge of an employer, that an employee is harassed, she/he must take necessary steps eg. issuing a written warning (in very serious cases even a dismissal notice) to the harassing employee, and/or trying to relocate the employee to another team or working section. It is generally assumed that an employer should have a complaints procedure and a sanctioning policy. It is also recommended for an employer to appoint a confidential counsellor and a complaints committee. If an employee is found to have been bullied/ harassed, the employer should assist the employee in filing a formal complaint or in dealing with the case informally. If necessary and appropriate, the employer should investigate and take appropriate measures. Investigate carefully and consider taking disciplinary action against the employee responsible. Offering counselling or mediation is also recommended. Carry out an investigation, and, if necessary, assist the employee to file a report to the authorities; Educate and monitor the harasser to ensure that harassment/bullying is not repeated; Provide support for affected parties e.g. counselling; review existing policies and procedures, and revise them where necessary. An employer is obliged to respond to the complaint if filed, and remedy it. Investigate carefully and consider taking disciplinary action against the employee responsible. Offering counselling or mediation is also recommended by the ACAS Code. Companies should act in accordance with to their internal policies.