Are employers responsible for the behaviour of others?

A care assistant experienced offensive behaviour of a sexual nature from the disabled citizen she had been hired to care for. The care assistant’s employer was not responsible for the disabled citizen’s behaviour, but the subsequent dismissal of the care assistant was in conflict with the Act on Equal Treatment of Men and Women. That was the decision of the Eastern High Court in this case.

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The Act on Equal Treatment of Men and Women lays down a prohibition of sexual harassment. However, the employer can only be held responsible for sexual harassment if the harasser is deemed to be identical to the employer, or if the employer disregards its obligation of providing – to the widest extent possible – a harassment-free working environment for its employees.

The care assistant had been hired to care for a person with brain damage and a physical disability. When performing her work for the disabled citizen, the care assistant e.g. experienced that he made sexual comments and that he touched her breasts and crotch. The care assistant always objected to the disabled citizen’s offensive behaviour.

At some point, the disabled citizen informed the employer that he did not want to continue working with the care assistant. Prior to that, the care assistant had filed a complaint regarding the disabled citizen’s behaviour. Shortly after, she was dismissed because the disabled citizen found that their relation lacked chemistry. Then the care assistant and her trade union initiated proceedings.

The care assistant believed that the employer was responsible for her being sexually harassed by the disabled citizen, e.g. alleging that in her day-to-day work the disabled citizen acted as her supervisor on behalf of the employer. In addition, she believed that the employer – which knew about the disabled citizen’s behaviour – had failed to protect her against the harassment to a reasonable extent. The care assistant further alleged that she had been dismissed on the grounds of her complaint regarding the harassment carried out by the disabled citizen.

Not identical
The High Court found that the fact that the disabled citizen himself scheduled when the care assistant’s tasks, such as tasks related to the disabled citizen’s personal care, were to be performed did not mean that he had managerial authority as such vis-à-vis the care assistant. Thus, the disabled citizen could not be considered to be identical to the employer.

The High Court also held that the employer had fulfilled its obligation to provide a harassment-free working environment and to protect its employees against harassment to a reasonable extent, e.g. based on the continuous discussions between the care assistant and her direct manager about how the care assistant should handle the behaviour of the disabled citizen.

Dismissed on grounds of claim for equal treatment
The High Court found that the care assistant had shown facts establishing a presumption that she had been dismissed on the grounds of her complaint regarding the disabled citizen’s offensive behaviour and, thus, her claim for equal treatment.

In its decision, the High Court attached importance to the fact that the employer had not offered the care assistant employment with another citizen as an alternative to dismissal.

Accordingly, the care assistant was awarded a compensation of 6 months’ pay.

Norrbom Vinding notes

  • that even though the harasser is not an employee of the employer, this does not mean that the employer is relieved of the obligation to provide a harassment-free working environment and to protect its employees from harassment to a reasonable extent; and
  • that as part of this obligation the employer may have to look into the options of transferring the employee to another position if the harasser is a customer or business partner.

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

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