Employers in conflict between the duty to protect and the presumption of innocence
At present, the topic is all over social media as part of the #metoo campaign. Employers confronted with such a harassment complaint generally have various disciplinary measures open to them. At the same time, however, they have a duty of care towards both the victim and the accused person.
1. Where does sexual harassment begin?
One of the challenges in dealing with harassment allegations already starts with defining the term itself. Included are basically all acts of a sexual and sexist nature occurring in the work context, which are perceived by the recipient as undesirable or as injuring their personal integrity. There is no clear boundary and it cannot be predefined by a third party. In fact, it is not the intent of the perpetrator that is decisive, but that the advances or attempts to debase are subjectively perceived as disturbing by the affected person.
Examples of such actions are:
- unwanted physical contact;
- suggestive remarks and sexist comments;
- advances, which are connected with the promise of advantages or the threat of disadvantages;
- showing, hanging or transmitting pornographic content.
Such actions can originate from employees as well as from supervisors, partner companies or customers.
2. Where does Swiss law stand?
Various regulations impose a general duty of care on the employer. It is therefore the responsibility of the employer to ensure that employees are protected from discrimination in the workplace and that they are always treated with dignity. Article 328 of the Swiss Code of Obligations also explicitly adds to the duty of the employer to ensure that "employees are not sexually harassed and that any victim of sexual harassment suffers no further adverse consequences." The Gender Equality Act specifies that harassment on the basis of gender, including the promise of benefits, is discriminatory (article 4 of the Gender Equality Act "GEA").
In such cases, the employer may be required to pay compensation of up to six monthly salary payments (as well as damages and compensation for personal suffering), if it cannot be proven that measures have been taken which, in the light of experience, are necessary, appropriate and reasonable to prevent sexual harassment (article 5 para. 3 GEA). In addition, harassed persons are entitled to protection against dismissal during the entire period of an internal investigation after an internal complaint or during legal proceedings, as well as for a further six months after the conclusion of such proceedings. The termination may be annulled by a court, with the result that the employment relationship continues.
3. What are the elements of an effective prevention campaign?
With preventive measures, an employer can protect both their workforce and themselves. The most effective prevention is proactive: An employer should be clear about promoting a harassment-free climate, with executives and supervisors leading by good example and intervening immediately in the event of incidents. This sends the signal that misconduct is not tolerated under any circumstances and forms the basis for a corresponding corporate culture. An important factor is the authority of the employer to issue directives through which any form of harassment can be prohibited. In addition to a basic definition of sexual harassment, the employer should identify and provide means of support (e.g. an internal and/or external contact point for those affected) as well as sanctions in case of misconduct.
Important: a one-time sensitisation of the employees on the topic, e.g. by distributing a leaflet, loses its effect after a certain time. It is therefore advisable to remind the staff of the topic on a regular basis by conducting information events (with external or internal speakers) and/or providing information documents. In addition, the information on sexual harassment in the workplace should be accessible to employees at all times. Finally, care must be taken to ensure that the designated contact persons are trained in dealing with complaints and the persons involved.
4. How do you react as an employer?
In a climate of uncertainty and mistrust, absences increase and productivity and overall employee satisfaction drop. The consequences of terminations and court proceedings can be time-intensive and costly. In addition, it is not uncommon for the media to take notice of such incidents. If, despite prevention measures, there is an incidence of sexual harassment, the employer, thus, has a considerable interest in quickly clarifying the allegations and taking the appropriate actions. As an employer, you should consider the following:
Initial conversation with the victim:
- The first step is to listen and let the alleged victim tell their version of events. Be aware that leading up to this conversation a lot has probably already happened.
- Deepen, in a second step, the accusation points, which could be the basis for a counterstatement by the accused person.
- Clarify the victim's expectations towards you as an employer (possibly an in-house investigation is requested) and the accused person.
Hearing of the accused person:
- Avoid prejudice.
- If appropriate, clarify the defusing measures the alleged perpetrator would be willing to consider (confrontation, apology).
- Inform about possible sanctions (verbal reprimand, written warning (with or without a probation period), termination). Caution: Special disciplinary measures such as reductions in pay or suspension require a basis in the employment contract or in the general employment conditions (personnel regulations).
Feedback to the involved parties:
- After completing the interviews, you should offer the involved parties a feedback and define the further steps as well as declare possible sanctions.
- If need be, the internal prevention work must be adapted.
Keep a written record of all the conversations and have them signed. Please also note that the persons involved generally have the right to inspect the relevant documents.
Not infrequently, the accused person will refuse to cooperate in clarifying the allegations for obvious reasons. It is also conceivable that conditions for the hearing are drawn up (such as being accompanied by an attorney or a member of the employee representation). The extent to which such behaviour should already result in sanctions or to which an employer should respond to such conditions cannot be answered in general terms. The specific circumstances of the individual case are decisive.