As a result of the global focus on issues relating to sexual harassment in the labour market caused by the #MeToo movement, the Danish Ministry of Employment has launched a consultation on a Bill to amend the Danish Act on Equal Treatment of Men and Women. The Bill e.g. involves an increase in the compensation level in sexual harassment claims.
In the light of the #MeToo movement, the Danish Ministry of Employment has launched a consultation on a Bill to amend the Danish Act on Equal Treatment of Men and Women.
The Bill proposes to specify in the Act that employers’ obligation to provide equal employment terms for men and women also includes a prohibition on sexual harassment. The purpose is mainly to specify the prohibition on sexual harassment which is already laid down in the Act.
Danish case law provides a number of examples of sexual harassment claims where the courts have attached importance to the general workplace culture, which has led to a legal situation where a workplace culture involving casual, informal or bantering communication has affected the decision of whether a certain behaviour constitutes sexual harassment.
It is stated in the explanatory notes to the Act that the Government takes a stern view of violation of the prohibition on sexual harassment and that the amendment of the Act is intended to specify that “casual”, “informal” or “bantering” workplace behaviour or language does not mean that employees must generally put up with offensive behaviour or language which would otherwise have been regarded as unacceptable had the tone of communication or conduct at the workplace been more professional or restrictive. The explanatory notes also read as follows:
”In the assessment of whether sexual harassment in conflict with the Danish Act on Equal Treatment of Men and Women has occurred, weight should therefore not be given to the question of whether particularly casual, bantering or informal language or behaviour is used or exists at the workplace. The tone of communication or conduct at the workplace has not been chosen by the individual employee and, for this reason, it should not form part of the assessment of whether the prohibition on sexual harassment in the Danish Act on Equal Treatment of Men and Women has been violated.”
It is further proposed that additional wording be inserted into the Act specifying that when determining the compensation level under the Act it may be taken into account that the violation of the Act constituted a breach of the prohibition on sexual harassment.
It is stated in the explanatory notes to the Bill that the purpose of the amendment is to increase the compensation level in cases concerning sexual harassment by, as a starting point, approx. 30% compared with the current level, which is estimated at approx. DKK 25,000 in the notes.
The amendment is proposed to enter into force on 1 January 2019. The provision regarding increased compensation levels will, accordingly, only apply to sexual harassment claims where the harassment has occurred after the effective date.
Norrbom Vinding will follow and comment on the Bill and its passage through the Danish Parliament.
The content of the above is not, and should not be a substitute for legal advice.
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.