The Western High Court ordered a painting company to pay damages and compensation to a painter who had suffered a psychological work injury due to sexual harassment at a large construction site. 

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Under the Equal Treatment Act, employers are required to provide a harassment-free working environment, including a working environment free from sexual harassment. Likewise, according to the Working Environment Act, employers have an obligation to ensure a mental working environment that is fully adequate in terms of health and safety.

The case concerned a painter who was employed by a painting company in the period from 2014 to 2019 and who, from August to December 2017, mainly worked at the same large construction site. The painter experienced that writings and drawings of a sexual nature were made about her and her body in the lifts at the construction site as well as other places. For example, it was written that someone ”wanted her body” and that she had ”a great ass”. In addition, the painter started receiving questions about the writing in the lifts – both in person and via text messaging – from her colleagues in the painting company, but also from workers from other companies at the construction site.

The painter went to the two managers of the painting company and informed them about the harassment. Attempts were then made to paint over the writing in the lifts and the site manager was also contacted. The two managers took no further action, and the writing in the lifts and other places at the construction site continued. One of the managers further told the painter that she should ”take it as a compliment”.

The painter went on sick leave in January 2018 as a result of the conditions at the construction site and stayed on sick leave until June 2019, at which point she left her position. During this period, the painter was diagnosed with an unspecified stress reaction, which was later acknowledged as a work injury by the Labour Market Insurance and affirmed by the Council of Appeal on Health and Safety at Work.

The painter subsequently claimed that the painting company was liable for the sexual harassment she had suffered during her employment, and that she was therefore entitled to compensation under the Equal Treatment Act as well as damages for pain and suffering and compensation for loss of earnings under the Act on Liability for Damages.

The painting company contended that the case should be dismissed as they believed they had sufficiently ensured a harassment-free working environment.

Western High Court: the employer had failed to meet its obligations
The High Court upheld the judgment of the district court, holding the painting company liable for the sexual harassment. Firstly, the High Court took into account that the painter had been subjected to sexual harassment in connection with the performance of her work and that the painting company had failed to meet its obligation to ensure a harassment-free working environment in accordance with the Equal Treatment Act.

In its assessment, the High Court emphasised that the writings about the painter at the construction site went beyond what should be tolerated as an employee, especially given the extent and content of the writings and drawings which had clear sexual undertones and were aimed at the painter.

The High Court found that the painting company’s management was or should have been aware of the unwanted sexual harassment, as the painter had contacted the management, just as the management had its daily activities at the construction site. It was further established that the management had not done enough to investigate who was behind the writings, nor had they done enough to put an end to the harassment of the painter. The management had further failed to follow up on the painter’s mental wellbeing.

Second, the High Court ruled that the painting company had failed to meet its obligation to ensure a safe and healthy working environment in accordance with the Working Environment Act and that the required causal link had been established, because the harassment had to be considered the triggering cause of the painter’s sick leave and had also been a contributing factor in the entire course of the painter’s illness until her recovery.

The painter was therefore awarded a compensation of DKK 30,000 under the Equal Treatment Act as well as compensation for loss of earnings and damages for pain and suffering under the Act on Liability for Damages.

Norrbom Vinding notes:

The High Court’s judgment serves as a good example of employers’ obligation to ensure a harassment-free working environment and that this obligation also applies in a situation where the sexual harassment is carried out by someone other than the employer’s own employees/managers.

Furthermore, the judgment illustrates that the employer – in addition to the obligation to pay compensation under the Equal Treatment Act – may also incur liability for damages in relation to the individual subjected to the offensive behaviour and may, thus, be ordered to pay compensation under the Act on Liability for Damages, including damages for pain and suffering, compensation for loss of earnings, etc. 

The content of the above is not, and should not be a substitute for legal advice.