Liable for not preventing and dealing with sexual harassment

An employer was held liable for not preventing and dealing with an employee’s sexual harassment of another employee and for dismissing the employee when she informed the employer of the sexual harassment.

Norrbomvinding 10180

According to the Equal Treatment Act, sexual harassment is contrary to the principle of equal treatment between men and women and constitutes discrimination on grounds of sex. Furthermore, an employee who is dismissed or subjected to other adverse treatment by the employer due to a complaint within the undertaking (also known as victimisation) is entitled to compensation.

The case concerned a female administrative assistant at a window cleaning business. As part of her job, she helped ensure that all employees on a yearly basis provided proof that they had no criminal record in accordance with the employer’s guidelines.

During the employment, the employee was subjected to sexual harassment by a coworker, a window cleaner, on multiple occasions both verbally, physically and by text messages and phone calls.

The window cleaner was eventually dismissed for poor performance. During the proceedings, the employee stated that when she learned that the employer was considering dismissing the window cleaner, she informed the employer of the sexual harassment. Notwithstanding this information, the employer waited a couple of weeks before dismissing the window cleaner.

After the dismissal, the employee found out that the window cleaner had recently been convicted of assault against a former partner and had been ordered to perform community service once a week. Instead of informing the employer about the situation, the window cleaner had called in sick on the days in question.

The employee reported this to the employer, and she was dismissed shortly thereafter. According to her statement, at this time she also elaborated on the extent of the sexual harassment. The window cleaner was later convicted of several counts of sexual assault against the employee at her home.

Dismissed because she was unable to “say no”
The employee’s trade union issued proceedings, claiming that the employee was entitled to compensation, partly because of the sexual harassment, which the employer had not prevented, and partly because the employer had dismissed her unfairly when she filed a complaint about the sexual harassment. The union stressed the fact that the employee was dismissed the day after she described the extent of the sexual harassment to the employer.

The employer submitted that it had taken several measures to prevent sexual harassment, such as creating a clear-cut division between the different departments. The sexual harassment had taken place in the private sphere and was therefore not covered by the Equal Treatment Act. Furthermore, the employer argued that the employee did not inform management of the sexual harassment, so the employer could not be held liable for the sexual harassment.

A part of the proceedings concerned the grounds of the dismissal. The employee’s immediate manager explained that the dismissal was based on the employee’s omission to inform the employer that the window cleaner was in fact not sick on his sick days and that he had a criminal record, even though it was part of her job to handle the company guidelines in this regard. The employee explained that the manager had told her she was being dismissed because she was unable to “say no” in her personal life and professional life.

Compensation for victimisation
Both the district court and, later, the Eastern High Court ruled that the employer could not be held liable for the sexual harassment that had taken place outside of the workplace in the employee’s leisure time, also because the window cleaner was not the employee’s manager.

However, the employer could be held liable for the sexual harassment that had taken place during working hours, including the text messages and phone calls with a sexual content. The High Court noted that the employer had not initiated any measures to prevent sexual harassment such as implementation of a harassment policy. Both the district court and the High Court found that the employee had informed the employer about the sexual harassment before the window cleaner’s dismissal and that the employer had still refrained from taking action in spite of this information.

Accordingly, the employee was awarded a compensation of DKK 40,000. The district court did not find it substantiated that the dismissal was a result of the sexual harassment complaint and, consequently, in violation of the Equal Treatment Act but ruled that the dismissal was unfair.

In the appeal proceedings, the High Court took into account that the employer, in any event, learned about the full extent of the sexual harassment before the employee was dismissed and that her explanation about the grounds for the dismissal were credible. The employer had not disproven breach of the principle of equal treatment, and the employee was awarded a compensation corresponding to nine months’ salary.

Norrbom Vinding notes

  • that the decision of the High Court is one of few rulings in Danish case law that deals with discrimination on grounds of sex in relation to sexual harassment and an almost unique case about the aspect of victimisation; and
  • that, in this case, the courts attached importance to the fact that the employer had not taken any preventive measures, such as establishing guidelines for preventing sexual harassment, and took this into consideration in their assessment of liability. This confirms the employer’s duty to take preventive measures and the significance of such measures in possible discrimination claims.

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

More about the subject