Passively allowing a colleague to morally and sexually harass other employees represents a very serious breach of employment conditions subject to punishment by way of dismissal on disciplinary grounds.

Judgment delivered by the High Court of Justice of the Basque Country on 20 September 2016

As head of security, the dismissed employee maintained a passive approach to the workplace and sexual harassment suffered by two female colleagues, failing to both report it to the company and take the appropriate action to prevent a repeat of such behaviour, despite being fully aware of it.

The court acknowledged that a dismissal on disciplinary grounds requires a serious breach by the employee, as well as an assessment of the specific circumstances and position of the employee within the company, using progressive criteria when analysing the conduct and punishment imposed.

In any event, the recognition of such breach does not require the specifi c breaking of contractual good faith by the employee, with culpable negligence proving sufficient grounds in this instance. In other words, the employee should be aware of a breach of their duty of loyalty towards the company.

Evidence was provided in this case to prove that the dismissed employee was aware of the workplace and sexual harassment suffered by his colleagues due to the actions of another, following repeated complaints which were ultimately disregarded. Ignoring such harassment entails a clear act of disloyalty and disregard of duty as the head of a team, even more so given the high level of responsibility under the role in question.

In view of the foregoing, the court concluded that the alleged misconduct was worthy of justifying the maximum penalty: dismissal.