Final Report

European Association of Labour Court Judges Twelfth Annual Congress 4th & 5th July 2008

FINAL REPORT

Harassment and Violence at Work

Held at Palace of Justice Schmerlingplatz Vienna Austria

Supported by funding from the European Commission

TABLE OF CONTENTS

General Report p. 3 Appendix I – National Reports Austrian Report p. 21 Belgian Report p. 27 Czech Report p. 41 Estonian Report p. 46 Finnish Report p. 51 German Report p. 56 Hungarian Report p. 63 Icelandic Report p. 73 Irish Report p. 78 Italian Report p. 90 Lithuanian Report p. 95 Luxembourg Report p.101 Maltese Report p.110 Netherlands Report p.121 Norwegian Report p.126 Slovenian Report p.134 United Kingdom Report p.143 Appendix II - Synthesis of Reports p.147 Appendix III - Programme p.214 Appendix IV – List of Delegates p.216 Appendix V - Conference Transcript p.217 Appendix VI - Framework Agreement p.238 Appendix VII - Implementation Report p.241

EUROPEAN ASSOCIATION OF LABOUR COURT JUDGES

Colin Sara - Secretary General Regional Office of the Employment Tribunals Crescent Centre, Temple Back Bristol BS1 6 EZ United Kingdom

Telephone - 44-117 9298261 e-mail – [email protected] Fax - 44-117 9253452

Harassment and Violence at Work

Access to Judicial Remedies in implementing the Frameworks Agreement on “Harassment and Violence at Work of 26.4.07

A. Introduction

This is the Final Report of the Congress of the European Association of Labour Court Judges which took place at the Supreme Court of Austria on 4th and 5th July 2008.

This Report is based on –  The National Reports from each participating country which are set out as Appendix I  The Synopsis of those Reports prepared by the EALCJ’s expert, which is set out as Appendix II  The record of the proceedings of the Congress itself. The Programme is set out as Appendix III and the transcript is Appendix IV.

As is indicated from the long-title of the Congress, the starting point is the recent “Framework Agreement on Harassment and Violence at Work” [Appendix V] approved by the social partners on 26th April 2007 and reported to the European Parliament on 8th November 2007. The First Report on Implementation [Appendix VI] was adopted by the Social Dialogue Committee on 18th June 2008.

This Report has been prepared by the Secretariat of the EALCJ and has been disseminated in draft form to the delegates at the Congress for their comments and approval.

B. Identifying the problem

The employment relationship is not simply a legal, contractual agreement. It involves complex, multiple relationships. An employee has a relationship with the corporate employer, with his or her immediate boss, with fellow workers, with customers and with members of the public.

In a perfect world all of these relationships would be conducted in a civilised and co-operative manner. However, in reality, any of these relationships can create problems for an individual employee. The work-place is a competitive and demanding arena and employees have to accept that things will not always be as they wish. However, they are entitled to be protected from harassment and violence.

The Congress agreed that we should not spend excessive time in trying to define what is meant by “harassment”, but should, instead, concentrate on deciding how best to combat it. It became apparent at the Congress that the problem of workplace harassment, or “mobbing” as it popularly known, has been perceived as a problem in many countries for some time. Initially it was identified as a problem by the popular press, but it has developed to one that society as a whole and, in particular, the judiciary have to acknowledge and address.

Although this was touched on quite briefly, we were made aware that harassment does not necessarily come from a manager, or a colleague. An employee can be harassed by customers, patients, school pupils or by members of the public who he comes into contact with during his work. An example is a social worker who visits a prison and is abused by the prisoners. To what extent is the employer under an obligation to take steps to prevent or ameliorate such harassment?

During the course of the Congress we had a panel discussion involving two representatives of the social partners from Austria who had been involved in the drafting of the agreement and are involved in its implementation in Austria. It was made clear that the initiative for the Agreement originated from concerns that the Health and Safety Directive was not being fully implemented in relation to harassment. We were clear, however, that there was no reason why its implementation should be restricted to the “health and safety” route. Although this Agreement represents an agreed way forward between the Social Partners, it has no force of law. It is not due to be fully implemented until 2010.

4 Many interesting ideas came from this discussion. One was to challenge the stereotype of the person who may be the subject of bullying. The stereotypical image may be a a young woman who is subjected to sexual innuendo or a callow youth who is teased by the established work-force. A more sophisticated stereotype might be a keen young employee who is over- worked by the management, but it emerges that the most common victim is someone over 40, who is feeling unstable in the labour force, because employers tend to favour younger workers, who are seen as forward-thinking and become disenchanted with older workers who, while experienced, may not welcome change.

This demonstrated to us the importance of seeing bullying as a separate issue not necessary connected to any of the standard stereotypes of the disadvantaged worker.

The panel discussion also brought out the seriousness of the problem. A Swedish study has suggested that one in six suicides can be due to a workplace problem, though this could exaggerate the link since such problems may be only part of a wider problem in the person’s relationships.

The Congress was happy to approve and adopt the description of “harassment and violence” contained the Framework Agreement.

“Different forms of harassment and violence can affect the workplace. They can  be physical, psychological and/or sexual  be one off incidents or more systematic patterns of behaviour  be amongst colleagues, between superiors and subordinates or by third parties such as clients, customers, patients, pupils etc.  range from minor cases of disrespect to more serious acts, including criminal offences, which require the intervention of public authorities.”

This wide description means that the problem needs to be addressed in a number of different ways, ranging from criminal prosecution to informal discussion and advice. It also means that the specific definition used in Directives addressing discrimination on specific grounds (which are dealt with below) may not be the sole basis of definition for the different forms of harassment and violence which can affect the workplace.

However, at paragraph 3, it states –

“Harassment occurs when one or more worker or manager are repeatedly and deliberately abused, threatened and/or humiliated in circumstances relating to work.

By referring to “repeatedly” this seems to exclude the one-off incidents referred to in section 1 of the Agreement.

5 C. Addressing the problem at the workplace

(1) Management response

The role of labour court judges is always to adjudicate upon problems which have not been addressed and resolved at the work-place. We, therefore, find ourselves deciding whether the events described by the employee actually happened and, if so, whether the employer is responsible.

There are, therefore, many situations in which judges have to deal with the management response to allegations of harassment. However, we acknowledge that by the time matters come to court, the damage may already have been done. “Prevention is really what everybody wants to do and, if it ends up in an investigation or court there has been a failure”.1

We debated this problem at some length. The conclusion we reached was that judicial proceedings, which may result in awards of compensation or administrative fines or even prison sentences, do have their place in ameliorating the impact of harassment on the individuals concerned by making them feel that their problems have been recognised. This is dealt with below2.

What the Agreement sets out is a number of steps which should be taken by management to prevent, identify and manage problems of harassment and violence.

The first step is the need for a statement that harassment and violence will not be tolerated. The risk in such a statement is that it is seen as mere cipher and an alternative to action. The Congress, therefore, emphasised the need for this statement to be properly publicised within the enterprise and also properly implemented at the appropriate level. Many of the judges referred to situations where the business had excellent policies drafted by the Human Resources Department, but where the employees and line managers had no knowledge of them.

The statement should set out the procedures to be followed. This gave rise to discussion about who should have the job of identifying problems at an early stage and dealing with them.

The problem with acts of harassment, particularly acts of sexual harassment, but also with bullying by people in authority, is that they are most likely to happen in private. It is also common for employees suffering from harassment to be reluctant to tell anyone about it. They may have many reasons for silence – fear of losing the job, fear of ridicule by colleagues, fear of being regarded as a trouble-maker. This means that there is a need for informal, as well as formal procedures.

1 Kevin Duffy, President of the Irish Labour Court 2 Section D - National Legislation

The obvious first line of responsibility is the immediate line manager. This requires training. A line manager whose job it is to deliver the company’s production cannot be expected to be an expert in detecting and dealing with harassment. However, he or she may well be the person best placed to see what is happening. Therefore, once an employee has decided to disclose the problem, the immediate supervisor may be the person he or she would go to.

There are, however, difficulties with this approach. The line manager may actually be the person responsible for the problem. He may have been aware of it, but treats it as a minor problem which is just part of the “rough and tumble” of life. In short, the manager may not be the best person to recognise and address the problem.

The natural first response of a manager would be to discuss the matter with both the victim and the perpetrator and try to get them to sort it out between themselves. Whether this is appropriate depends on the seriousness of the allegation. A disagreement about proper boundaries, physical or verbal may be resolved in this way, with the perpetrator learning about the sensitivities of the victim. But a meeting to discuss a more serious issue, for example of intimidatory bullying, physical violence or sexual approaches, may encourage further intimidation, or result in reprisals by colleagues.

This leads to the provision in the agreement that –

“It is in the interests of all the parties to proceed with the necessary discretion to protect the dignity and privacy of all”

It is tempting to concentrate of the dignity and privacy of the alleged victim. A person who makes a complaint can be subject to ridicule or worse if it is disclosed to others. He or she needs to have sufficient confidence to disclose concerns without fear that it will become general knowledge.

On the other hand the alleged perpetrator also has rights. The allegation may not be true. The alleged perpetrator could be subjected to ridicule or recrimination. The right to a fair trial under Article 6 of the European Convention on Human Rights applies to court hearings, but what about the decision of the Labour Inspector, or the Equal Opportunities’ Commission, or, more especially the internal or external investigator? There are dangers in judgment and stigmatisation by a person who is not in a judicial position and may not be alert to the need for a “fair trial” of the alleged perpetrator.

This leads to the next provision that -

“No information should be disclosed to parties not involved in the case”

The problem is that investigation necessarily involves talking to independent witnesses and to the alleged perpetrator. The normal system is to start by speaking to the complainant, then to independent witnesses and then to the

7 alleged perpetrator. This creates risks that confidentiality will be compromised, but there is no real alternative.

The rights of both parties are involved in the principle that -

“complaints should be investigated and dealt with without undue delay”

While there are many criticisms of employers for ignoring or trivialised complaints, there are also risks of over-investigation. A complaint of verbal harassment does not necessarily need to result in the alleged perpetrator being suspended for months while every conceivable witness is interviewed, with the victim being left in a state of uncertainty about what will happen.

Speed and expedition are essential to this process, even at the expense of thoroughness. “The best is enemy of the good”3 If a popular employee is suspended, the alleged victim may suffer recriminations. The essential relationship of trust and confidence between the employment grouping may be destroyed. By contrast prompt action may clear the air and give each party a chance to start afresh.

Fairness is covered in the agreement by saying –

“All parties should get an impartial hearing and fair treatment” “Complaints should be backed up by detailed information”. “False accusations should not be tolerated and may result in disciplinary action”

This section could be seen as giving undue emphasis to the rights of the perpetrator above that of the victim. However, the system must be seen to be fair, not only to the immediate parties, but also to the wider workforce, who have to accept one or both of the parties back. Furthermore, there are cases where the allege victim is using an allegation to settle old scores or to under- mine attempts to improve his or her job performance.

The problem with all this is that managers are not experts in quasi-judicial hearings and adjudication, whereas bringing in external expertise in the investigation and adjudication is liable to exaggerate and extend the importance of the issue, so that a comparatively minor default can come to seem to like a major crime.

There was much discussion about the possible outcomes. The best outcome may be that the perpetrator appreciates the inappropriateness of his or her actions and the victim recognises that acceptance and agrees to start again. However, such a “soft” response sometimes leaves everyone dissatisfied. The idea of moving the two people apart creates many risks. An employee should not normally be moved against his or her will. A proven perpetrator may deserve to be moved away, but there is a temptation to take the easier option and move the victim, who may well be a subordinate, rather than to risk

3 ―le mieux est l‘ennemi du bien‖ Voltaire, La Begeule, 1772.

8 upsetting the efficiency of the business by moving away a successful manager who has stepped out of line.

This means that often the outcome is a formal warning, a decision to move the perpetrator or dismissal of the perpetrator. This in turn involves a detailed analysis of the seriousness of the event.

It is not surprising, therefore, that often, despite attempts to resolve the issue at the workplace, the matter becomes a judicial issue.

(2) Union and Works Council response

Many countries emphasised the important role of the unions and, where they exist, works councils, in dealing with harassment. The union representative may be in the best position to become aware of problems and may be seen as the best person to turn to as champion of the victim.

Many collective agreements contain specific procedures to deal with harassment. In the end the sanction, if there is a sanction, has to come from the employer, but the union can have an important role in brokering an internal settlement or supporting the victim’s case.

The difficulty, which we did not discuss, is that the alleged perpetrator may himself or herself be a member of the union and, indeed, that the union officials may themselves be part of the culture which tolerates and institutionalises bullying.

The same is equally true of works councils. They may well acknowledge the problem, but equally it may suit them to ignore it.

Therefore, despite the obvious sincerity of the representatives of the social partners in relation to this issue, there are risks in relying too heavily on the ability of unions to identify and oppose harassment.

(3) Government bodies

Even in countries where the problem is addressed as a discrimination issue, there can be involvement from public bodies, such as the Equality Commission in Ireland, the Institute for the Equality of Men and Women in Belgium and the Equality Committee in Germany. However, these organisations are aimed principally at sex discrimination4 and do not have a specific remit to cover other kinds of harassment and bullying. It is noticeable for example that the new Equality and Human Rights Commission in UK makes no reference to harassment in its mission statement. Its remit is described as “to reduce inequality, eliminate discrimination, strengthen good

4 Austria – ―A key function of the ET commission on the request of the female lawyer (must be a female) is to compile expert reports on matters of infringement or undertake a case by case investigation.‖

9 relations between people, and promote and protect human rights”. Of these only “good relations between people” could possibly be seen as encompassing harassment and bullying which is not on the grounds of any of the specific categories of discrimination.

No doubt all of the equality commissions would see it as part of their role to prevent harassment on discriminatory grounds, including not only sexual harassment, but also harassment on grounds of race, religion etc. They might, indeed, go beyond the specific categories of discrimination referred to in the Directives, to encompass the longer definition of discrimination on the Charter of Fundamental Rights5 as harassment on political grounds, or other aspects of discrimination contained in national constitutions6.

It became clear during the panel discussion, that Equality Bodies may be able to go beyond their strict remit and take up specific cases. Also, such issues can be referred to an ombudsman.

(4) Alternative dispute resolution

Many countries have systems for internal and external assistance to help management deal with harassment issues. Thus, in Belgium, firms have a “prevention consultant” who offers support to victims of harassment and informs workers of the consequences of issuing a complaint within the firm and tries to conciliate between the victim and the perpetrator.

In countries where harassment is treated as a health and safety issue the “prevention officer” is provided by the state as part of the Labour Inspectorate. We were not entirely clear, however, how widespread this is. A state provided service has obvious advantages, except to the tax-payer, whereas it is likely to be the larger and more sympathetic businesses who are willing to spend the money on external resolution of this kind, leaving the most vulnerable workers unprotected.

Dr Peter Hoffman, who represented the employees’ side of the social partners at our Congress, is himself a conflict management specialist. Many countries emphasise the importance of independent expertise in resolving these issues. “Work psychologists” are available7. We have already mentioned the risks involved in escalation. However, once the conflict has gone beyond immediate resolution at the work-place, independent analysis by a specialist from outside the business may help to provide a solution which can be accepted by all parties.

This role can be formalised in mediation. It is not appropriate in this Report to deal at length with mediation. It is clear that all countries have facilities for

5 which includes such things as ―political opinion‖ 6 e.g. social class 7 For example in Finland

10 mediation. This, again, is an expensive process and, in the absence of subsidised services, is likely only to be used in the most serious cases.

The Congress has discussed judicial mediation in the past. Once a case reaches the courts, judges attempt, with various degrees of formality, to persuade the parties to resolve their dispute without a final formal adjudication. The German system is especially well-developed in regard to this. 8

In the end, however, all countries provide access to the judicial system to provide a resolution to the dispute which will often involve the payment of financial compensation to the victim.

D. National Legislation

Despite the absence of any EU Directives relating directly to harassment or “mobbing”, all participating countries acknowledged the importance of this problem and had taken steps to address it at a national level.

There was some concern that by the time matters came to court, the damage had been done because the relationship between the victim and the employer or fellow employees had been damaged. Very often the employee had actually left employment. If he was still there an award of compensation would do nothing to improve the situation.

However, declarations by courts and awards of compensation do have a value, even if they occur long after the problem has arisen. They may serve as a vindication for the victim, thereby increasing self-esteem, or opprobrium for the perpetrator, whether individually or collectively. As such they may serve to concentrate the mind of the employer concerned and, through public dissemination, highlight the problem in the minds of other employers.

The problem can be addressed in public law, private law and criminal law.

(1) Public law

Article 5 of the Health and Safety Directive (89/391) provides –

“1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to work”

Article 6(b) requires the employer to implement measures under principles of prevention including –

8 The United Kingdom is introducing a system of judicial mediation by employment judges which is divorced from the process of the case. We believe that a similar system was tried in the Netherlands, but has been discontinued.

11 “(g) developing a coherent overall policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors related to the working environment.

This is wide enough to encompass harassment and mobbing.

In many countries there is specific legislation forbidding harassment, based on the health and safety requirements. For example in the Netherlands and Norway there is the Working Environment Act. This contrasts with other countries, such as Germany, where harassment which is not for any specific discriminatory reason is treated as an extension of the equality legislation. In other countries, such as UK, it can only be enforced in the labour court as part of a separate claim, for example for constructive dismissal, or breach of the implied terms of the contract (Ireland).

Dealing with this as a health and safety issue has advantages and disadvantages. The advantage is that it comes within the ambit of the Labour Inspectorate who can then take direct action to address the problem. This action can include administrative fines against the employer9 (eg Czech Republic), but also direct compensation to the victim.

The disadvantage is that it comes to be resolved as a matter of public law, so that it comes before the administrative court, rather than the labour court. It is not clear whether this is in fact the case in the Nordic countries.

It did emerge, however, that in several countries10, the Labour Inspectorate are quite occupied with harassment cases, whereas in other countries11, Labour Inspectors do not really get involved. The evidence suggests that active involvement by the Labour Inspectorate is seen as an alternative to litigation and reduces the number of harassment claims. However, it was pointed out12 that the Labour Inspectorate, while it may fine the employer, cannot usually provide for compensation of the victim.

What our Congress made clear is that it is desirable to focus on the effect of the harassment rather than the reason for it. Bullying and mobbing is a feature of all communities and groups of people and the victims can be anyone who does not conform to the norms of the group. There is little evidence that the various equality commissions have taken this on board. Indeed, many of them seem to be structured13 specifically primarily to address the disadvantages suffered by women within the workforce.

9 eg Czech Republic 10 For example Finland 11 For example United Kingdom 12 By the President of the Hungarian Labour Court 13 For example with provisions that certain officials should be women.

12 (2) Private Law

(a) Labour Court

All claims relating to employment tend to be dealt with in the various and disparate labour courts of the Member States. However, this does not mean that any employee can raise any issue they wish arising out of their employment. It is necessary for an employee to identify a contravention of specific laws.

(i) Equality and anti-discrimination legislation

Although it is now accepted that the problem is a wider one, the concept of harassment in employment has arisen out of the various equality and antidiscrimination provisions which are dealt with, in practice, by the different labour courts. Most of the cases arose originally out of sex discrimination. This is, perhaps, illustrated by the provision in Austrian law that some Equality posts are restricted to women.

The EALCJ has, in the past, spent considerable time discussing the effectiveness of anti-discrimination laws in the different countries. From these previous discussions and from the National Reports, it is plain that all Member States have implemented the Directives on discrimination and that they all have mechanisms in place to protect employees who have been discriminated against. However, the dynamics are very different. In many countries these issues are dealt with through collective agreements, with recourse to the labour court as a last resort, often with the union as the primary party. In others litigation is common and the number of claims considerable, but there are nevertheless variations in the ease of access, depending on the costs of bringing claims, the availability of legal aid and the potential liability for the other side’s costs if the claim is unsuccessful. There are also indications, particularly in the more recent Member States, that public awareness of these rights and remedies is limited and that this reduces the number of claims.

The concern about the effectiveness of existing anti-discrimination legislation was voiced again at the Congress. One of the problems is finding clear evidence of discrimination. Despite the rules placing the burden on proof on the employer, many jurisdictions are reluctant to find discrimination without clear evidence and, in practice, most discrimination is covert.14 The result is that a very small percentage of discrimination cases succeed. Concentrating on the acts of harassment, rather than the reason for it, may change this.

The Congress touched on the issue of burden of proof, which applies to both discriminatory harassment and more general bullying. Where the allegation is

14 ―It is not an effective system. Only 5% of cases are found to be discrimination. it is not effective because lawyers prefer to judge the ‗administrative person‘‖ – Aldo de Matteis, Italy. However, these bald statistics do not always take into account the number of cases which are settled by agreement, meaning that victim gets at least partial recompense.

13 of a specific act of harassment, there may be an uncorroborated allegation by the alleged victim which serves to shift the burden of proof to the alleged perpetrator. It is then difficult for the alleged perpetrator to prove a negative. Equally the principle that the burden should fall on the employer, who is more able to bear it, does not apply equally to the alleged perpetrator. The consensus seemed to be that the burden must fall of the person making the allegation to provide clear evidence which, if believed, would amount to harassment, but it then passes to the employer to counter that evidence.

Where bullying or harassment can be linked to any of the heads of discrimination, which, in some countries, are wider than required by the Directive, then bullying and harassment can form part of a discrimination claim or can be the sole element of a discrimination claim.

The Framework Agreement, however, rightly treats bullying and harassment as a separate issue, which may or may not be linked to any of the accepted heads of discrimination. We had extended discussion on this issue and I became clear that in some countries, notably Germany, the discrimination laws had been liberally interpreted to cover bullying and harassment which is not linked to any of the accepted heads of discrimination. Other countries have framed their legislation is sufficiently wide terms to make is plain that they cover all kinds of harassment. This is particularly the case where it is dealt with as a health and safety issue to be litigated, if it comes to litigation, in the administrative court.

It is, however, clear that the Directive only covers discrimination on the specific and limited grounds set out and many countries have essentially just transposed the Directive. This means that in many countries the antidiscrimination legislation is not sufficient to deal with all problems of bullying and harassment arising in the work-place. Another problem was raised, which applies equally to harassment which is on specific discrimination grounds. Harassment in the work-place is often not committed by the employer. This means that it is not necessarily appropriate to penalise the employer for the actions of the employees.

It is generally accepted that harassment by a manager, including a junior manager, should be compensated by the employer. But what about harassment by fellow-employees, by contractors or by customers or clients?

In Ireland and the United Kingdom, the employer is liable for all harassment by employees in the course of employment, unless they have taken all reasonable steps to stop it happening. This means not only having a harassment policy, but implementing it with training etc. In the United Kingdom an employee can be personally liable, but only once liability has been proved against the employer. It is, therefore, a secondary liability.

In any event there seems no reason why the burden of proof should be different in bullying or harassment which is not based on a discriminatory motive.

Although courts may make declarations and recommendations, usually the outcome is an award of compensation to the victim or a fine, which goes to the state. We took the opportunity to obtain an overview of the amount of compensation awarded. This produced quite a wide range. In Austria it was €720 to 4000; in Finland €5000 was the average and in Lithuania around €4000; in France a figure of €3750 was given as an example; in Germany €10,000 may be awarded for immaterial damage; in Ireland awards are about €40,000 and in UK non-material damage can range from €600 to €30,000. This was not a scientific analysis and it was not clear to what extent these assessments included material loss, such as loss of earnings, but it did disclose substantial differences, which might indicate differences in the priority given to such cases.

(ii) Unjustified dismissal.

All15 the countries of the EU provide protection against unjustified dismissal16 and this includes protection from dismissal at the initiative of the employee17, sometimes called “constructive dismissal”. If a person is bullied by a person in authority, or if he or she is bullied by colleagues and the employer fails to take action, then the employee may see no alternative but to leave. Where that failure is sufficiently serious to justify the employee’s action, this will, in all Member States, be treated as a dismissal, giving the employee a right to redress.

Bullying can also be relevant in deciding whether a direct dismissal is fair. For example an employee may be dismissed due to incapability caused by ill- health. Such a dismissal may be held to be justified. But if the ill-health is stress-related and the stress is caused by bullying then the dismissal may thereby be rendered unfair. Another example is where misconduct by the employee, such as insulting words or even violence, may have been caused in turn by bullying of that employee which has not been addressed by employer.

It follows, therefore, that issues relating to bullying and harassment do come up in claims of unjustified dismissal, but this is not a satisfactory way of combating bullying. By definition the employee has left the employment and, even if there is a remedy of reinstatement,18 this is notoriously difficult to put into effect.

15 Except Denmark which deals with such issues through collective agreements, where they are applicable. 16 See EALCJ Report – ―Termination of Employment at the Initiative of the Employer: the Challenge for Corporate Social Responsibility‖ of 3rd March 2005., available at www.ealcj.org. 17 une rupture imputable à l‘employeur 18 See Termination of Employment at the Initiative of the Employer: the Challenge for Corporate Social Responsibility‖ above at s. 7.3 p.21

15 It may be, therefore, that a claim of unjustified dismissal is the most commonly used remedy for people who have suffered bullying or harassment, but it is not an effective remedy, because it addresses the issue at too late a stage and requires the victim to take the drastic step of leaving his employment.

(b) Civil court

Many countries provide remedies in the civil courts for bullying and harassment as a statutory tort or delict.19 These rights are not restricted to the employment field, but they apply equally to people in employment.

The general feeling was that, in so far as these separate remedies exist, they are little used in employment cases. There was no obvious explanation for this, but it may be due to the more complex procedures in civil cases, or even the fact that employment lawyers and advisers are not accustomed to using the civil courts.

Another approach is for a victim to seek to use remedies intended to personal injuries. Although this has been used in the United Kingdom it is not mentioned in any other National Report and we did not discuss it. It can only apply when the claimant can show injury to mental health which amounts to a personal injury.

The Framework Agreement accepts that there is a wide range of bullying and harassment and that the most serious cases may involve the criminal law. This can, in most cases, only be pursued by the public authorities20 and they would only prosecute in the most serious cases. Some such cases will be standard criminal acts, such as assault or rape.

However, some cases have separate statutes which criminalise acts of harassment or bullying which do not amount to criminal acts in the tradition criminal law.

This aspect is quite separate from the quasi-criminal role of the Labour Inspectorate which may bring proceedings which result in administrative fines.

5. European Dimension

As stated in the Introduction, the only European document which addresses bullying and harassment as a separate issue is the “Framework Agreement on Harassment and Violence at Work”. However, a number of Directive have addressed the problem as part of other issues.

19 For example, in the United Kingdom, s.3 Protection from Harassment Act 1997 20 The United Kingdom has a process of private prosecution where individuals feel that the public authorities are not enforcing the law.

There are relevant Directives in relation to discrimination and health and safety. In chronological order these are –  Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin

This is restricted to issues involving racial or ethnic origin. Article 2.3 makes it clear that harassment is deemed to be discrimination –

“ Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of member states”

This definition is reflected in part of the description of “harassment” in the Framework Agreement.

- Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

This Directive is a Framework Directive, which mean that it can be implemented in various ways by the Member States. It covers a number of different aspect of discrimination namely “religion or belief, disability, age or sexual orientation”.

Article 2.3 contains the same definition of “harassment as the race discrimination Directive 2000/43

Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions

This Directive amends the Sex Discrimination Directive to add specific reference to harassment, again using the same definition.

These directives have been the subject of judgments of the European Court of Justice, but this Report is not intended to address the subtleties of the meaning of this definition. However, the Framework Agreement itself, without seeking a “definition” has described harassment in both wider and narrower terms.

We found no indication that the margin of appreciation for individual national legislation contained in the definition in the Directives, is actually reflected in

17 any disparity between the countries. The definition in the Directives is largely accepted as the correct definition.

It is clear, therefore, that European law has fully addressed harassment in the context of discrimination, with hard law which is enforceable by any individual who feels aggrieved.

On the other hand, the Framework Agreement on Harassment and Violence at Work is soft law. It places the onus on the social partners to implement it. The progress of implementation is contained in the Annual Report, adopted on 8th June 2008.

The Congress debated the current and future impact of the Framework agreement. One very important feature was that it was simply not known by the labour court judges of the various European countries. This is a common problem with documents like the Social Charter, but such documents do have a significant profile among academic lawyers and specialists.

The difference between a Charter adopted by the Council of Ministers and as Agreement reached between the social partners is considerable. Charters are regularly cited in court and have a significant influence on the interpretation of legislation by the national courts. National courts are less likely to be influenced by an agreement which has not been endorsed at the highest level.

There is, however, a further problem with this Agreement. Harassment and violence has had a very high profile in many countries of the EU and has resulted in numerous seminars and lecture courses to help employers and unions to address it. The Congress had no evidence that this Framework Agreement has been used in order to inform this debate.

This is because of the method used to disseminate it. Trade unions and employer associations have limited resources and are dependent on their members for finance. Much as they may desire to address issues of this kind, they are not set up to cascade such documents widely.

The Annual Report itself gives considerable cause for concern. Several countries have not bothered to report at all. Others have set out specious reasons for their failure to implement it21. We have seen no evidence of the Agreement being publicised in the national press or cascaded to the people seeking to address this problem on the ground.

21 The excuse that they were unable to obtain a translation of a three page document from English to German beggars belief!

6. Conclusions

There is no doubt that harassment and violence at work is a significant and complex problem. Its complexity arises from different perceptions of what amounts to harassment and the wide range of seriousness.

The interaction of individuals always leads to competition and strife. This is as much the case in the work-place as in the family. There is a danger of “pathologising” the normal relationships between people by bringing them into the litigious arena.

Article 11.1 of the Charter of Fundamental Rights provides –

Everyone has the right to freedom of expression.

Article 21 provides –

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

This latter is a much wider list of grounds for discrimination than that contained in the Directives. However, the definition of discrimination contained in the Directive makes it clear that it includes harassment.

The role of employers and labour courts is to protect people from harassment and violence while preserving people’s rights to freedom of expression.

This requires an understanding of the different levels of harassment which can “range from minor cases of disrespect to more serious acts, including criminal offences” and making sure that they are dealt with in a proportionate manner22.

This is not to minimise the damaging effect of harassment and bullying (or “mobbing”) both on the individuals concerned and on the welfare of the whole work-force. It is an issue which needs to be addressed. It is a big achievement of the anti-harassment legislation that we now have a name for a phenomenon which, in the past, we knew about without clearly identifying it.

The method adopted of addressing it across of range of areas, starting and centring on the work-place itself, was largely approved. The role of the Labour Court Judges is to oversee and enforce that management

22 In USA employers have forbidden a wide range of conduct, even if it does not pose a threat to gender orientated equal treatment. Freedom of speech and opinion are threatened. To what extent is this going to happen in the future? – Prof Runggaldier.

19 involvement, trying to ensure that serious examples of harassment do not go unpunished.

We were, however, concerned that the use of anti-discrimination provisions as a means of giving redress to victims of harassment and mobbing has led to a concentration on the “grounds” of harassment, when it would be much better to centre on the effect, which can be similar whatever the reason why it is being done.23

We were also concerned at the failure of the Framework Agreement, as yet, to have any real impact of the problem. We appreciate that it is not due to be fully implemented until 2010 (which represents a very long time lag for a concept to which there is no real opposition), but the minimal progress to date emphasises the weakness of “soft law” and the impotence of the Commission to impose hard law solutions, even where, as here, there is overall agreement among the Member States and mobbing and harassment are a bad thing and should be stopped.

March 2009 Colin Sara Secretary-General

23 ―It is very important to protect sex, gender, but why not protect from harassment on every ground because it is all discrimination? No victim felt better because there was no reason for the harassment?‖ – Austrian delegate

20 APPENDIX I

NATIONAL REPORTS

AUSTRIAN REPORT

Herbert Hopf Judge of the Supreme Court Austria

Vienna, 30th May 2008

Austrian Report for the EALCJ – 12th Annual Congress ―Harassment and Violence at Work‖ Palace of Justice Vienna, 4th & 5th July 2008

QUESTIONNAIRE

Combating Harassment and Violence at Work

1. Definition and scope

- Does protection from harassment apply regardless of the reason for the harassment or is it limited to specific categories of discrimination (sex, race, religion, disability etc)?

The protection from harassment is limited to specific categories of discrimination: sex, gender, ethnic origin, religion or belief, age, sexual orientation and disability.

- Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors?

The right applies to employees, but also to agency workers and economically dependent workers. The right also applies to independent contractors with regard to the access to self-employment.

21 - Does the definition contain subjective elements (i.e. does it have to be intentional and/or is it based on the perception of the victim)? Or is the definition objective, (i.e. not necessarily intentional and not based on the perception of the victim)?

The definition is mainly based on the objective effect of harassment and on the subjective perception of the victim. The employer‘s intention is not relevant in the case of direct harassment by the employer, but the intention of the employer is relevant in the case of harassment by third parties. Then the definition of harassment depends on the intentional omission by the employer who fails to take appropriate remedial action against harassment.

Does the law preventing harassment have any impact of the human right of freedom of expression?

The human right of freedom of expression is not unlimited. The human right of freedom of expression of one person ends where the human right of freedom from harassment of another person begins.

Is a distinction made between (for example) physical, psychological and sexual harassment?

No, there is no distinction made.

Is the worker also protected against harassment by third parties (clients, pupils)?

Yes, the worker is protected against harassment by third parties too.

2. Regulatory framework (national)

2.1 statutory regulation

Give a brief overview of the relevant legislation concerning harassment and violence at work. If possible, make a distinction between public (administrative) law, private law, and criminal law. Include in your description the protection against victimisation (protection of a worker who protests or appeals against harassment).

You can find the relevant legislation concerning harassment and violence at work and the protection against victimisation in the following Acts: - Equal Treatment Act (―Gleichbehandlungsgesetz‖ (GlBG), BGBl I 2004/66; for the private sector) - Federal Equal Treatment Act (―Bundes-Gleichbehandlungsgesetz‖ (B-GlBG), BGBl 1993/100; for the civil service) (see 5.: minimum financial compensation of 720 Euros in harassment cases on all relevant grounds) - Employment of Disabled Persons Act (―Behinderteneinstellungsgesetz‖ (BEinstG), BGBl 1970/22)

This legislation follows closely the definitions of harassment and victimisation in the Directives 2000/43/EC, 2000/78/EC and 2002/73/EC.

You can also find a penalty provision ―sexual harassment‖ in the Austrian Penal Code (―Strafgesetzbuch‖ (StGB), BGBl 1974/10).

2.2 non-statutory regulation

Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes of practice, recommendations etcetera. Explain the content of these instruments.

You can also find relevant provisions against harassment in a few collective agreements and works agreements. The content of these instruments ranges from the information, that harassment is not welcome, to the right of the victim to appeal, the duty of the employer to find a remedy against harassment and the further information, that harassment can lead to the dismissal of the perpetrator.

3. Institutional framework

Describe the role of the institutions occupied with prevention, monitoring and conflict resolution in the field of harassment and violence at work (for example: Ministry of labour, Equality Committee/Commission, Workers Representatives, Labour Inspectorate, Courts).

The institutions mainly occupied with prevention and monitoring are: - Workers Representatives (Works council) - Ombud for Equal Treatment (―Gleichbehandlungsanwaltschaft‖)

The institutions mainly occupied with conflict resolution are: - Equal Treatment Commission (―Gleichbehandlungskommission‖) - Labour Courts - Federal Social Office (―Bundessozialamt‖; only in the case of harassment on the ground of disability)

The jurisdiction of the Labour Inspectorate mainly lies on the technical aspects of health and safety provisions.

4. Procedures

4.1. extra-judicial and pre-judicial procedures

Describe the available non-judicial procedures such as complaint procedures, conciliation, investigation by a competent institution. Make a distinction, if relevant, between individual and collective procedures.

Works council: Its rights are laid down in the Labour Constitution Act (―Arbeitsverfassungsgesetz‖ (ArbVG), BGBl 1974/22). In the case of harassment the following rights of the works council might be useful: - The works council is entitled to supervise compliance with the laws relating to employees of the business. - The works council can request the owner of the business to remove irregularities and carry out the necessary measures. - The works council has the right to obtain information and deliberate on all matters of safety and health protection. - Every relocation promptly must be notified to the works council. If any relocation entails a worsening of the working conditions on a lasting basis, it is legally effective only with the prior consent of the works council. -The owner of the business has to notify the works council prior to giving notice to an employee. If notice is given without notification of the works council it is ineffective. If the works council has objected to termination, it may file suit within one week. - The right to conclude a works agreement concerning questions of harassment, violence at work etc.

Ombud for Equal Treatment: Its rights are laid down in the Equal Treatment Commission/Ombud for Equal Treatment Act (―Bundesgesetz über die Gleichbehandlungskommission und die Gleichbehandlungsanwaltschaft‖). The Ombud for Equal Treatment is entitled to provide advice, support and information on equality issues in employment and occupation related to sex, ethnic origin, religion or belief, age and sexual orientation; but also on equality issues in other areas of life with regard to a person‘s ethnic origin. Other areas of life are: access to and supply of public goods and services, education, social protection and social advantages. The Ombud for Equal Treatment can represent and accompany persons affected by discrimination (harassment) at preliminary negotiations prior to legal proceedings. The Ombud for Equal Treatment can also demand an investigation of a case of discrimination (harassment) by the Equal Treatment Commission.

Equal Treatment Commission:

23 Its rights are laid down in the Equal Treatment Commission /Ombud for Equal Treatment Act (―Gleichbehandlungskommission/Gleichbehandlungsanwaltschaft-Gesetz‖ [GBK/GAW-Gesetz], BGBl 1979/108). The Commission is entitled to investigate cases of discrimination (harassment) in an extra- judicial procedure. Its expert‘s reports are not binding recommendations, neither for the parties nor for the courts.

4.2. judicial procedures

Describe the judicial procedures in a harassment case. Distinguish between the different types of procedures, such as civil litigation, labour court procedure, administrative and criminal procedure.

The Austrian labour courts are part of the common civil courts‘ system. Only in Vienna there is a special labour court, which deals only with labour and social security matters. Unless otherwise provided in the Labour and Social Security Courts Act (―Arbeits- und Sozialgerichtsgesetz‖ [ASGG], BGBl 1985/104), the procedure before the labour courts is conducted in accordance with the provisions of the Austrian Code of Civil Procedure (―Zivilprozessordung‖ [ZPO], RGBl 1895/113).

The procedure before the labour courts in a harassment case (simplified diagram): Lawsuit – defence answer – court hearings – judgement first instance – appeal to the Court of Appeal – judgement second instance – appeal to the Supreme Court (only legal questions) – judgement third instance.

The procedure before the criminal courts in a case of sexual harassment (simplified diagram): Charge by the Public Prosecutor – defence answer - court hearings – judgement first instance – appeal to the Court of Appeal – judgement second instance.

Give also attention to the following points of interest:

- access to justice (locus standi)

Labour courts (simplified): The employee can choose between the labour court with local jurisdiction for the place of his residence during the employment and the labour court with local jurisdiction for his (former) workplace.

Criminal courts (simplified): The local jurisdiction of the criminal court depends on the place where the crime (sexual harassment) has been committed

- time limits

Labour courts: - One year for financial compensation for material and/or immaterial damage in cases of harassment on the ground of sex or gender - Six months for financial compensation for material and/or immaterial damage in cases of harassment on other grounds (ethnic origin, age etc [see 1.]) - 14 days for re-instatement after dismissal related to harassment

- burden of proof

Labour courts: The Austrian implementation follows closely the Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex. When persons, who consider themselves wronged because the principle of equal treatment has not been applied to them, establish facts from which it may be presumed that there has been discrimination, it is for the respondent to prove that there has been no breach of the principle of equal treatment.

5. Remedies and sanctions

Describe the remedies and sanctions that may result from harassment cases, such as: - penal or administrative fine - financial compensation for material and immaterial damage - re-instatement after dismissal related to harassment

Labour courts: - Financial compensation for material damage - financial compensation for immaterial damage (within the range of the Equal Treatment Act: minimum 720 Euros in harassment cases on the ground of sex or gender, 400 Euros in harassment cases on other grounds [ethnic origin, age etc; see 1.]; within the range of the Federal Equal Treatment Act: minimum 720 Euros in harassment cases on all relevant grounds) - Re-instatement after dismissal related to harassment

Criminal courts: - Penal fine, arrest

6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

- Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin - Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation - Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions - Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work - Framework agreement on harassment and violence at work (annex to COM (2007) 686 final)

You could find provisions against sexual harassment at the workplace in the Austrian Equal Treatment Act since 1993 and in the Austrian Penal Code since 2004. All other provisions about harassment on other grounds (i.e. gender, ethnic origin, religion or belief, age, sexual orientation and disability) are a result of the implementation of the Directives 2000/43/EC, 2000/78/EC and 2002/78/EC. The Austrian implementation follows closely the text of the Directives.

So you can say there is already a 10 years lasting tradition in the Austrian legal system referring to sexual harassment before the implementation of EU law, but there was no legal tradition referring to harassment on other grounds before 2004. Especially in those ―new‖ harassment cases there is a big legal impact of the EU law. But it should be mentioned that there are not many cases until today.

Since 1993 case-law has established in several cases in relation to sexual harassment. But there is not much case-law in relation to harassment on other grounds until today.

The Directive 89/391/EEC has not much impact on the field of protection against harassment.

The Framework agreement on harassment and violence at work (COM (2007) 686 final) is not much known until today. So the impact is small.

On the whole the established Austrian legal system meets the requirements of the Framework agreement on harassment and violence at work by the provisions of the Labour Constitution Act and the Equal Treatment Act. What could be largely improved is the lack of information about the legal options in harassment cases.

7. Examples

Describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant.

Case-law: - Supreme Court 1999/01/21, 8 ObA 188/98z: Financial compensation for immaterial damage in the case of sexual harassment has to be given by the court in a summary assessment and one amount and not for every single attack. This system corresponds to the usual system of the civil damages law in cases of pain compensation.

- Supreme Court 2008/06/05, 9 ObA 18/08z: On the ground of the consideration no 8 of the Directive 2002/73/EC (―To this end it must be emphasised that these forms of discrimination occur not only in the workplace, but also in the context of access to employment ...‖) the Supreme Court decides, that an employer, whose managing director had sexually harassed a woman applying for a job, has to pay financial compensation to this woman. The employer cannot argue the harassment took place before the start of the employment relationship.

26 BELGIAN REPORT

CONGRESS OF EALCJ

Vienna, Supreme Court of Justice, 4th and 5th July 2008

―Combating Harassment and Violence at Work‖

BELGIUM National reporter : Alain SIMON Counsellor Labour Court Liège

1. Definition and scope

Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability etc)?

Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors?Does the definition contain subjective elements i.e. does it have to be intentional and/or is it based on the perception of the victim)?

Or is the definition objective, (i.e. not necessarily intentional and not based on the perception of the victim)?

Does the law preventing harassment have any impact of the human right of freedom of expression?

Is a distinction made between (for example) physical, psychological and sexual harassment?

Is the worker also protected against harassment by third parties (clients, pupils)?

1. The Act of the 11th of June 2002, relating to the protection against violence and moral or sexual harassment at work, which is included in the Act of the 4th of August 1996, relating to the well-being of workers, when carrying out their work, and which explicitly deals with sexual harassment or harassment based on sex, defines sexual harassment at work as ‗‗all types of verbal, non verbal or physical behaviour of a sexual nature which the guilty party knows or should know will affect the dignity of men and women in the workplace‖

27 The Royal decrees of the 18th of September 1992 and of the 9th of March 1995, provide protection against sexual harassment in the workplace, with the law to the protection against violence and moral or sexual harassment at work, of the 11th of June 2002.

In the Act of the 7th of May 1999, on equal treatment of men and women relating to working conditions, access to employment and promotion possibilities, access to an independent profession and complementary social security systems, sexual harassment is categorised as a form of sex discrimination.

It is defined as ―any form of verbal, non-verbal or physical behaviour of a sexual nature which the guilty party knows or should know affects the dignity of men and women in the workplace‖.

The Act of the 11th of June 2002, relating to the protection against violence and moral or sexual harassment at work, which is included in the Act of the 4th of August 1996, relating to the well-being of workers, defines bullying at work as comprising ‗‗any illegitimate and recurrent behaviour, within or outside an enterprise or institution, than can manifest itself in the form of behaviour, verbal aggression, threats, gestures and unilateral writings. It is aimed at, or has as a consequence, that the personality, the dignity or the physical or psychological integrity of an employee, or any other person to whom the law can be applied is harmed during labour, that his position is jeopardized or that an atmosphere is created that can be labelled as threatening, hostile, offensive, or humiliating‖.

The Act of the 11th of June 2002, covers a wide range of situations.

In some areas, the acts covered involve relations between individuals working in the same company or workplace.

In others, especially where physical violence is concerned, they will more often involve relations between workers and users, clients or simply those with access to the workplace.

The Act‘s personal scope is also very wide.

It applies to all workers, including the civil service, some school and tertiary education students, voluntary workers working under someone‘s authority.

28 It also applies, to a limited degree, to domestic staff.

The Act includes all the new provisions brought in by the welfare at work Act of the 4th of August 1996.

2. Regulatory framework (national)

2.1 statutory regulation

Give a brief overview of the relevant legislation concerning harassment and violence at work. If possible, make a distinction between public (administrative) law, private law, and criminal law.

Include in your description the protection against victimisation (protection of a worker who protests or appeals against harassment).

2.1. The General Anti-discrimination Act of the 25th of June 2003 is a complement to the Act of the 30th of July 1981, criminalizing certain acts, inspired by racism or xenophobia.

The Act of the 30th of July 1981, criminalizing certain acts inspired by racism or xenophobia, initially made it a criminal offence to publicly incite to discrimination against a person or a group on the basis of ‗race‘, colour, ascendancy or nationality or ethnic origin.

Its scope of application is extended to the provision of goods and services and to discrimination against a person on the basis of his race, color, ascendancy, origin or nationality in the field of employment relationships, placement, professional training, employment offer, recruitment, execution of the employment contract or dismissal.

Thus, this legislation protects only against certain forms of discrimination based on ‗race‘, colour, ascendancy or nationality or ethnic origin.

It does not protect against discrimination based on other grounds.

Therefore, the criminal liability provided for in article 2bis of the Act of the 30th of July 1981 could not be relied upon, in any conceivable way, by a person who is discriminated against on the ground of her disability.

29 So, the protection from discrimination of a person with a disability in the fields covered by the Framework Directive 2000/78/EC is essentially based on the Act of the 25thof February 2003, the main legislative initiative which has been taken in Belgium to implement directives 2000/43/EC and 2000/78/EC.

The General Antidiscrimination Act of the 25th of February 2003, identifies harassment as a form of discrimination, and defines the notion in strict conformity with the Directives.

Article 442bis of the Penal Code, introduced by the Act of the 30th of October 1998, already criminalises harassment in general.

This article 442bis of the Penal Code states that: ‗‗anyone who harasses a person when he knew or should have known that this would seriously affect the tranquillity of the person in question shall be sentenced with between fifteen days and two years imprisonment and a fine of between 50 euros and 300 euros before the application of the additional tithes. The crime may only be pursued if the person who claims to have been harassed lodges a complaint.‘‘

Harassment in this context is not defined but is understood to cover importuning a person in a manner which is irritating for the latter and is not restricted to sexual harassment.

Harassing behaviour does not have to be of a repetitive nature, but it must seriously affect the tranquillity of the person concerned and must be voluntary on the part of the harasser.

It is not necessary that the harasser intended to infringe seriously upon the tranquillity of the victim although he must either have known or ought to have known that his behaviour would seriously affect the tranquillity of the victim.

Under article 11 of the Act of the 25th of February 2003, when harassment, as defined under article 442bis of the Penal Code is committed with a discriminatory purpose – i.e., when it appears to be a 'hate crime', motivated by hostility towards a person because of a particular characteristic suspected as being held by the victim – the penalties may be doubled.

30 The Act of the 11th of June 2002 on the protection against violence and moral or sexual harassment at work inserted a new Chapter Vbis in the Act of the 4th of the 4th of August 1996 again with a similar object.

The inclusion of the prohibition of harassment in the Act of the 25th of February 2003 would ensure that a civil action may be lodged against the harasser, with the possibility of a shift of the burden of proof under article 19 of the Act. However, article 32undecies of the Act of the 4th of August 1996, inserted in that Law by the Act of the 11th of June 2002, provides in similar terms for such a reversal of the burden of proof.

Article 32undecies of the Act of the 4th of August 1996, as modified by the Act of the 11th of June 2002, inserting a new chapter Vbis in that Act, states that :―where a person having a legal interest establish before the competent court facts from which it may be presumed that there has been violence or moral or sexual harassment in employment, it shall be for the respondent to prove that there has been no such violence or moral or sexual harassment committed‖

This protection also applies to other workers, such as witnesses, involved in a dispute.

2.2. non-statutory regulation

Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes of practice, recommendations etcetera.

Explain the content of these instruments.

2.2. The Collective agreement n°38 relating to the recruitment and th selection of workers, made obligatory by the Royal decree of the 31 of bis August 1999 was modified by the collective agreements n° 38 of 29 of October 1991, n°38ter of 17 July 1998 and n° 38quater of 14 July 1999. This latest amendment led to the insertion into article 2bis in the Collective agreement of two new grounds of prohibited discrimination, sexual orientation and disability.

31 Article 2bis of Collective agreement n° 38 now reads : The employer may not treat the candidates in a discriminatory fashion. During the procedure, which term refers both to the ―recruitment‖, referring to all the activities performed by an employer, which relates to the announcement of a vacancy and to the ―selection‖, referring to all the activities performed by an employer which relate to hiring a candidate, the employer must treat all the candidates equally.

The employer may not make distinctions on the basis of personal characteristics, when such characteristics are unrelated to the function to be performed by the prospective employee or the nature of the undertaking, unless this is either authorized or required by law.

Thus, the employer may in principle make no distinction on the basis of age, sex, civil status, medical history, race, colour, ascendancy or national or ethnic origin, political or philosophical beliefs, membership of a trade union or of another organisation, sexual orientation or disability.

Article 11 of the Collective agreement n° 38 guarantees respect for the private life of the candidate : according to this provision, this implies that questions which relate to private life will only be justified, if they are relevant according to nature of the function postulated and its conditions of performance.

The obligation to respect the private life of the candidate is imposed not only to the employer, but also on all those who are involved in the hiring procedure, e.g., psychologists or physicians who intervene on behalf of the employer.

This guarantees that, in principle, the candidate will be able to hide invisible disabilities from his future employer, even if these disabilities come to the surface in the course of the recruitment procedures.

This collective agreement has been adopted through negotiations between the social partners within the National Work Council and, after its approval by the adoption of a Royal decree, it has been made binding upon all employers in Belgium, within all sectors of activity. It is notable that, under Article 56 of the Act of the 5th of December 1968 on Collective Agreements, any violation of the compulsory clauses of collective agreements, which have been approved by Royal decree, will be considered a punishable offence.

32 Indeed, certain forms of discrimination in employment will therefore be criminalized, despite the fact that the same acts would only lead to civil sanctions under Act of the 25th of February 2003, which constitutes the main legislation implementing the Framework Directive.

3 Institutional framework

3. The firms have a ―prevention consultant‘‘ who offers support to victims of harassment and informs workers of the consequences of issuing a complaint within the firm.

The specialised, ‗‗prevention advisor‘‘ in the workplace, appointed for the employer with the agreement of all employee representatives, sits on the committee for prevention and protection at work.

The prevention advisor tries to conciliate the victim and the perpetrator.

If this does not work the victim can bring a complaint.

The complaint is given to the employer company with the advice of the prevention advisor.

The employer has to take measures to stop the harassment.

Where the harassment continues i.e. after it has been reported to the employer and the employer fails to take appropriate measures, the prevention advisor refers the matter to the labour inspectorate from the Federal Public Department of Employment and Work which has responsibility for monitoring of legislation.

Legal authorities also help all people requesting a consultation on their rights and obligations within the area of their expertise.

33 acting on a legal basis in disputes which could arise from the application of criminal laws and other laws whose specific aim is to guarantee the equality of men and women.

Representative trade union organisations defend victims of sexual harassment or harassment based on sex, before the courts and may themselves go to court in all disputes concerning sexual harassment at work.

The federal public department of employment and work which controls well-being at work may file a complaint with the labour inspectorate which carries out an investigation and may refer the complaint to the prosecutor.

Labour tribunals were also mentioned as a means of monitoring legislation. They also suggest measures to the employer with a view to stopping harassment. This is the last option that the victim can choose, but the Belgian legislation encourages the use of the internal procedure with the prevention advisor rather than the procedure in front of a tribunal

The employer must, after an act of sexual harassment has been reported, carry out a risk analysis for all acts of harassment for which a complaint has been lodged or which have been entered in a register of acts of violence, which only concerns acts originating outside the firm.

The employer must subsequently evaluate the prevention measures which he had already established and, if necessary, adapt them or create new ones.

The Belgian decrees of the 9th of March 1995, the 25th of February 1999 and the 26th of July 2000, provide for the appointment of a ‗‗confidential person‘‘ or service whose aim is to offer advice, assist members of staff who are victims of sexual harassment in the workplace and help to solve the problem in a formal or informal manner.

In the public sector when the facts relating to sexual harassment provided to the confidential service call for an inquiry the latter is carried out by the ‗‗confidential person‘‘.

4 Procedures

4.1. extra-judicial and pre-judicial procedures

34 Describe the available non-judicial procedures such as complaint procedures, conciliation, investigation by a competent institution. Make a distinction, if relevant, between individual and collective procedures.

4.1. The employer must put in place arrangements to prevent violence, psychological harassment and sexual harassment, which must include at least, physical adjustments to the workplace, a statement of the provision made for victims, specifically, the relations with the complaint resolution officer and the specialized prevention adviser, timely, impartial investigation of the facts, listening to and assisting victims, supporting and helping victims return to work, line management‘s obligations to prevent the situations envisaged, information and training for workers and informing the committee for prevention and protection at work (C.P.P.T.).

The employer must have a prevention adviser with skills in the psychosocial aspects of work and violence at work, psychological harassment and sexual harassment on the staff of his company prevention service. Failing that, there must be a prevention adviser on the external prevention service used.

The specialized prevention adviser may not be an occupational health doctor.

All firms, therefore, must have a specialized prevention adviser.

Employers can also appoint one or more complaint resolution officers to act as ―first line‖ players to listen to what victims have to say and attempt an informal reconciliation.

All these measures of prevention plan and appointment of a specialized prevention adviser and complaint resolution officers require the prior agreement of the workers representatives, who therefore have joint decision-making power in this area.

A range of procedures are available.

Victims may take their complaint through company internal procedures via the complaint resolution officer or specialized prevention adviser of the company service if there is one, otherwise via the external service.

35 Or they can complain to the Federal Public Department of Employment and Work‘s medical inspectorate either because company procedures have not worked or because the victim lacks confidence in them.

If mediation does not work, redress can be sought through the courts either by the victim personally, or their trade union, or a voluntary organization.

Belgian legislation also provides protection against dismissal and imposed changes in working conditions for victims who have brought a substantiated complaint.

4.2. judicial procedures

Describe the judicial procedures in a harassment case. Distinguish between the different types of procedures, such as civil litigation, labour court procedure, administrative and criminal procedure.

Give also attention to the following points of interest: - access to justice (locus standi) - time limits - burden of proof

4.2. Labour tribunals were mentioned as a means of monitoring legislation. They also suggest measures to the employer with a view to stopping harassment. This is the last option that the victim can choose, but the Belgian legislation encourages the use of the internal procedure with the prevention advisor rather than the procedure in front of a tribunal

The General Antidiscrimination Act of the 25th of February 2003, identifies harassment as a form of discrimination, and defines the notion in strict conformity with the Directives.

Article 442bis of the Penal Code, introduced by the Act of the 30th of October 1998, already criminalises harassment in general.

36 Under article 11 of the Act of the 25th of February 2003, when harassment, as defined under article 442bis of the Penal Code is committed with a discriminatory purpose – i.e., when it appears to be a 'hate crime', motivated by hostility towards a person because of a particular characteristic suspected as being held by the victim – the penalties may be doubled.

The Act of the 11th of June 2002 on the protection against violence and moral or sexual harassment at work inserted a new Chapter Vbis in the Act of the 4th of the 4th of August 1996 again with a similar object.

The inclusion of the prohibition of harassment in the Act of the 25th February 2003 would ensure that a civil action may be lodged against the harasser, with the possibility of a shift of the burden of proof under article 19 of the Act. However, article 32undecies of the Act of the 4th of August 1996, inserted in that Law by the Act of the 11th of June 2002, provides in similar terms for such a reversal of the burden of proof.

Article 32undecies of the Act of the 4th of August 1996, as modified by the Act of the 11th of June 2002, inserting a new chapter Vbis in that Act states that :―where a person having a legal interest establish before the competent court facts from which it may be presumed that there has been violence or moral or sexual harassment in employment, it shall be for the respondent to prove that there has been no such violence or moral or sexual harassment committed‖

5. Remedies and sanctions

Describe the remedies and sanctions that may result from harassment cases, such as :

- penal or administrative fine - financial compensation for material and immaterial damage - re-instatement after dismissal related to harassment

5. In the absence of preventative measures or measures aimed at putting an end to the harassment, an employer is liable for harassment by employees and third parties.

An injunction to prevent further harassment may be sought under emergency proceedings before the President of the First Instance, the Labour Tribunal or the Labour Court.

37 At the request of the victim the judge may sentence the perpetrator of the discrimination to pay a penalty if the discrimination has not ceased.

The civil and criminal liability of the employer as the person responsible for the prevention policy may be invoked even if he is not the perpetrator.

Within the framework of the prohibitory injunction the employer may be requested by the judge to take appropriate steps to ensure that the acts cease and can be subjected to the imposition of criminal sanctions if he fails to comply.

6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

Does your system meet the requirements of the Framework agreement on harassment and violence at work? Give particular attention to the procedure mentioned in paragraph 4: investigation without undue delay; impartial hearing; support with reintegration;

6. The employer must have a prevention adviser with skills in the psychosocial aspects of work and violence at work, psychological harassment and sexual harassment on the staff of his company prevention service.

Failing that, there must be a prevention adviser on the external prevention service used.

The specialized prevention adviser may not be an occupational health doctor.

All firms, therefore, must have a specialized prevention adviser.

38 Employers can also appoint one or more complaint resolution officers to act as ―first line‖ players to listen to what victims have to say and attempt an informal reconciliation.

A range of procedures are available.

Or victims can complain to the Federal Public Department of Employment and Work‘s medical inspectorate either because company procedures have not worked or because the victim lacks confidence in them.

The prevention advisor tries to conciliate the victim and the perpetrator.

If this does not work the victim can bring a complaint.

The complaint is given to the employer company with the advice of the prevention advisor.

The employer has to take measures to stop the harassment.

If mediation does not work, redress can be sought through the courts either by the victim personally, or their trade union, or a voluntary organization.

Belgian legislation also provides protection against dismissal and imposed changes in working conditions for victims who have brought a substantiated

39 complaint.

7. Examples

Describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant.

7. It has been accepted by the labour tribunal, at Dinant on the 1st of June 1998, that ―injuries resulting from a physical attack on a worker by her superior in the course of sexual harassment were caused by an „„industrial accident‟‟ as was the pregnancy of a worker „„seduced‟‟ by her foreman by moral constraint‖

The labour tribunal at Charleroi, on the 24th of January 2000, accepted that ―sexual harassment amounted to a form of sex discrimination‖ while in the labour court at Ghent on the 1st of july.1998 ruled that ―sexual harassment which took the form of the display of pornography by a male worker to a subordinate young female worker constituted serious grounds for the former‟s dismissal‖.

40 CZECH REPORT

ON THE LEGAL REGULATION OF EQUAL TREATMENT IN LABOR RELATIONS (CZECH REPUBLIC)

INTRODUCTION

Legal relations arising during the course of the performance of employment are regulated by a code of labor law – Act No. 262/2006 Coll., the Labor Code. It contains, inter alia, a general regulation of equal treatment, prohibition of discrimination and consequences of the breach of rights and duties ensuing from the violation such labor relations.

Pursuant to Section 16 of the Labor Code: (1) Employers shall safeguard equal treatment for all employees as regards employees’ working conditions, remuneration for work and other emoluments in cash and in kind (of monetary value), vocational training and opportunities for career advancement (promotion). (2) Any form of discrimination in labor relations is prohibited. The terms, such as direct discrimination, indirect discrimination, harassment, sexual harassment, persecution, an instruction to discriminate and/or incitement to discrimination, and the instances in which different treatment is permissible, shall be regulated by the Antidiscrimination Act. (3) Discrimination shall not mean a different treatment where, owing to the nature of occupational activities, such a different treatment constitutes a substantial requirement necessary for the performance of work; the purpose followed under this exemption must be legitimate and the requirement must be adequate. Discrimination shall further not be deemed to occur when an employer takes a measure the purpose of which is substantiated by the prevention or balancing of any disadvantage resulting from an individual’s belonging to any group defined by any reason specified in the Antidiscrimination Act.

With regard to the fact that the Antidiscrimination Act has not yet been adopted, it is possible to define the terms relating to this issue according to Act No. 435/2004 Coll., on Employment; this Act regulates the safeguarding of the national employment policy in accordance with the law of the European Communities. From the point of view of equal treatment in fulfilling the subject-matter of this Act, the very range of parties to which the Act is addressed, as specified in Section 3, is very interesting.

(1) Parties to legal relations under this Act shall be: a) the Czech Republic represented by the Ministry and labor offices; b) individuals (natural persons) having legal capacity to be an employee; individuals (natural persons) shall be understood to be citizens of the Czech Republic and, under the same conditions, foreigners (i.e. foreign nationals, aliens) who meet the conditions for being employed pursuant to this Act; c) employers; an employer shall also be a branch (an organizational component) of either a foreign legal entity or of a foreigner provided that such branch is authorized to carry on business activity in the Czech Republic under other statutory provisions; d) legal entities and individuals and other entities (agencies) under other statutory provisions, exercising activities pursuant to this Act. (2) A citizen of another Member State of the European Union (hereafter referred to as ―a citizen of the European Union‖ or ―an EU citizen‖) and his family members shall have equal legal status (position) as a Czech citizen in legal relations regulated by this Act, unless this Act provides for otherwise. (3) Family members of a citizen of the Czech Republic who are not nationals of the Czech Republic or any other Member State of the European Union shall have equal legal status (position) as a Czech citizen in legal relations regulated by this Act, unless this Act provides for otherwise.

To the parties defined above applies the requirement to abide by the principles of equal treatment and prohibition of discrimination in enforcing the right to employment.

(1) The parties to legal relations pursuant to Section 3 (1) (a), (c) and (d) shall ensure equal treatment for all individuals (natural persons) applying their right to employment; however, application of a criterion (difference of treatment which is based on a characteristic) laid down in this Act or other statutory provisions shall not be considered as unequal treatment. (2) In applying the right to employment, it shall be prohibited to discriminate against an individual, directly or indirectly, on grounds of sex, sexual orientation, racial or ethnic origin, nationality, (state) citizenship, social background, family background, language, health condition, age, religion or confession, property, marital or family status or duties towards one’s family, political or other conviction, membership of, and activity in, political parties or political movements, trade union organizations; discrimination on grounds of pregnancy or maternity shall be regarded as discrimination on grounds of sex. Discrimination shall also mean conduct (activity) which involves inciting, encouraging or giving rise to pressure aimed at discrimination. (3) Discrimination shall not mean difference of treatment based on a ground pursuant to Subsection (2) where it ensues from the nature of such employment, or its context, that the ground forms a substantial and decisive requirement for the employment (job) which an individual is to perform and that it is necessary for its performance; the aim followed under this exemption (exception) must be justified and the requirement must be adequate. (4) The implementation of measures laid down by law and aimed at preventing or leveling out disadvantages relating to a certain individual (natural person) who belongs to a group of people on any of the grounds pursuant to Subsection (2), and measures adopted pursuant to Section 6 (1) (e) and Section 8 (1) (c), shall not be regarded as discrimination. (5) ―Direct discrimination‖ shall be taken to occur where one person (individual) is, has been or would be treated less favorably than another person is, has been or would be treated in a comparable situation due to any of the stated discriminatory grounds. (6) ―Indirect discrimination‖ shall be taken to occur where an apparently neutral decision, criterion (differentiation) or practice puts a person into a particular disadvantage or advantage compared with another person on the basis of a criterion included in discriminatory grounds; indirect discrimination due to health condition shall also mean a refusal or omission to adopt a measure that is required in a particular case so that a person with disability has access to employment. Indirect discrimination shall not be deemed to occur where an apparently neutral decision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or where the legal entity or individual (natural person) is obliged to take appropriate measures in respect of persons with disabilities to eliminate disadvantages arising from such decision, criterion (differentiation) or practice. (7) ―Harassment‖ shall be such conduct that is justifiably regarded by another (natural) person as unwanted, inappropriate or insulting with the purpose of effect of degrading the dignity of this person or of creating a hostile, degrading or uneasy environment. (8) ―Sexual harassment‖ shall be any form of unwanted verbal, or other than verbal, conduct of sexual nature with the purpose of effect of violating the dignity of another person, in particular where it creates an intimidating, hostile, degrading, humiliating or offensive environment. (9) Harassment on grounds of sex, sexual orientation, racial or ethnic origin, a health disability, age, religion or confession and sexual harassment shall be considered as discrimination. (10) Where in applying one’s right to employment, the right and duties ensuing from equal treatment are breached or where discrimination occurs, the (natural) person concerned shall be entitled to demand: a) desistance from such conduct; b) elimination of consequences of such conduct; and c) appropriate satisfaction. (11) Where a certain person’s dignity or respect was degraded to a considerable extent and remedy pursuant Subsection 10 is insufficient, the person shall be entitled to compensation of non-material detriment in money (damages). (12) The amount of compensation (damages) pursuant to Subsection 11 shall be determined by the competent court, acting on the basis of the person’s petition and taking into consideration the significance of the detriment caused and the circumstances under which the rights and duties have been breached.

The above definitions must be taken into account when examining legal relations between an employee and an employer according to the Labor Code, which, in addition, expressly says in Section 14 (2) that:

The employer may not discriminate against his employee or put him at some disadvantage only because the employee claims rights ensuing from the labor relations in a lawful manner.

Observance of the obligations ensuing for employers from the Employment Act and equal treatment of employment candidates is supervised by the competent labor office. It may perform an inspection also by virtue of a written motion. An individual commits an administrative infraction and a legal entity commits an administrative delict by violating the prohibition of discrimination or by failing to safeguard equal treatment in accordance with the Employment Act. Such offenses may be punished by a fine not to exceed CZK 1,000,000.

Observance of the obligations ensuing from the legislation under which employees are given rights or duties in labor relations and from other labor regulations – i.e. the Labor Code and other laws – is supervised by regional labor inspectorates. The Labor Inspection Act No. 251/2005 Coll., on Labor Inspection, defines administrative infractions (Section 11) and administrative delicts) Section 24 in the field of equal treatment:

An employer commits an administrative infraction (individual) or an administrative delict (legal entity) in the field of equal treatment by a) failing to safeguard equal treatment for all employees as regards employees’ working conditions, remuneration for work and other emoluments in cash and in kind (of monetary value), vocational training and opportunities for career advancement (promotion); b) discriminating against employees (Section 16 of the Labor Code); c) discriminating against his employee or put him at some disadvantage because the employee claims rights ensuing from the labor relations in a lawful manner; d) failing to discuss with an employee or employee representatives, if the employee so requests, his complaint concerning the performance of rights and obligations ensuing from the labor relation. (2) The offense defined in Subsection 1 may be punished by a fine not to exceed CZK 400,000.

If an employer is a supplier of goods or a provider of services, he is obligated to abide by consumer protection laws. Act No. 634/1992 Coll., on Consumer Protection, prohibits discrimination against any consumer. When selling products or providing services, the seller may not act in contradiction to good morals; in particular, the seller may not discriminate against any consumer in any way. Observance of this prohibition and other obligations is supervised by the Czech Commercial Inspection. Violation of such prohibition may be punished by a fine not to exceed CZK 50,000,000.

Anybody may be punished for discrimination, even persons who are not employees or employers. Depending on the seriousness of the misconduct, a person may be punished either for an administrative infraction pursuant to the Administrative Infraction Act (fine not exceeding CZK 5,000) or for a criminal offense pursuant to the Criminal Code.

ANSWERS TO INDIVIDUAL QUESTIONS

1. The above requirement of equal treatment and prohibition of discrimination applies to the particular grounds, as specified above, which should comprise all the eligible events that may occur in practice. For the avoidance of doubt as to whether a certain event may be subsumed under any of the defined categories or not, the Labor Code contains a general and overall imperative that the performance of rights and obligations ensuing from labor relations must not be in contradiction to good morals.

The requirement of equal treatment and prohibition of discrimination concerns all types of employment, regardless of the name of such employment. From the practical point of view, it does not matter if the prohibition laid down in the Labor Code applies to different professional groups directly, secondarily, or if it is defined under the same name in an Act regulating their position (Civil Servant Service Act). Although the conduct of an employer is generally perceived very intensely, the conclusion about whether it is discriminative or not is dependent on the subjective judgment of the victim. On the other hand, not even the most specific definitions which could make it possible to

43 ―objectively‖ and mechanically classify a case are enough to judge it. A case must always undergo an independent examination considering its individual and specific circumstances.

Protection against discrimination undoubtedly influences the freedom of expression in the sense that no freedom can be unlimited – every freedom of an individual ends where the freedom of another begins.

2. 2.1 An overview of the fundamental legal regulation, including the protection of employees, has been provided above.

2.2 Protection against discrimination includes a set of social, cultural and moral rules, which have proven their certain constancy in the historical context, represent substantial historical tendencies, are recognized by the decisive part of the society and have the nature of fundamental rules. Therefore, it is a set of rules inherent in the entire society, and thus similar, yet different, rules applying for example only to a certain enterprise or branch of industry can be hardly imagined.

3. There is no institution that would deal only with equal treatment issues. It is evident from the above overview that a significant part, within their general competence, is played by labor offices, regional labor inspectorates and courts; it results from the nature of the matter that these issues may be also dealt with by unions, employee councils etc.

4. 4.1 In the case of criminal punishment, it is possible to engage the mediation service. Mediation is an out-of-court deliberation aiming to resolve the dispute between the accused and the injured and an activity striving to settle the conflict situation, which is carried out in relation to criminal proceedings. Mediation may be performed only with express consent of the accused and the injured.

4.2 The course of proceedings is defined by the relevant procedural legislation: Rules of Administrative Procedure, Rules of Civil Procedure and Rules of Criminal Procedure, which also regulate the access to courts. There are no time-limits specified for these proceedings, within which they would have to be closed. If necessary, the court may make an emergency ruling temporarily regulating the situation of the parties until the court passes a decision; in labor cases, no deposit is paid in order to secure the compensation of any losses which may occur as a result of such emergency ruling.

In civil procedure, the burden of proof is regulated as follows:

(1) Any and all statements made in labor cases claiming that a party has been directly or indirectly discriminated against based on sex, racial or ethnic origin, religion or belief, worldview, disability, age or sexual orientation shall be regarded by the court as proven, unless the contrary is revealed in the proceedings. (2) Any and all statements claiming that a party has been directly or indirectly discriminated against based on racial or ethnic origin which are made in cases concerning provision of health and social care, material welfare, access to education and vocational training, access to public tenders, membership in organizations associating employees or employers or membership in professional associations and sale of goods in stores or provision of services shall be regarded by the court as proven, unless the contrary is revealed in the proceedings.

5. In the event that the rights and obligations ensuing from equal treatment are violated or if discrimination occurs in the course of applying the right to employment, an individual may demand a) desistance from such violation; b) elimination of consequences of such violation; and c) appropriate satisfaction. If such remedies are not sufficient, the individual may also demand pecuniary compensation for other than proprietary loss.

44 The same remedies may be demanded by an employee.

An administrative infraction committed in this field may be punished by a fine not to exceed CZK 400,000 and a criminal offense shall be punished by imprisonment.

If an employee is dismissed from employment, he must seek declaration of invalidity of such dismissal by the court. In the case that the employee is successful, the employer must assign the employee to the same position; until the employee is so assigned or until they reach an agreement, the employer must pay the employee a compensation for the lost income.

6. The Labor Code expressly states that it ―embeds relevant regulations of the European Communities‖ and it also expressly mentions the directives stated in the questionnaire. Lawsuits in the field of equal treatment and prohibition of discrimination have been rather rare so far.

7. There was a case where a female employee claimed that she had been refused managerial position because of being a woman. She was not successful in her lawsuit, because her employer proved that the reason for her refusal had been the fact that the successful candidate had had higher qualification and that he had been better in general.

45 ESTONIAN REPORT

1. Provisions for prohibition on discrimination is pointed out in several legal acts in Estonia. 1.1. According to paragraph 12 in the Constitution of the Republic of Estonia everyone is equal before the law. No one shall be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds. The incitement of national, racial, religious or political hatred, violence or discrimination shall, by law, be prohibited and punishable. The incitement of hatred, violence or discrimination between social strata shall, by law, also be prohibited and punishable.

1.2. In connection with Estonian Republic joining into European Union in 01.05.2004, the Employment Contracts Act of Estonia has been made several amendments, which take relevant European Union directives into account. For example in paragraph 10² in Employment Contracts Act of Estonia is established definitions for direct and indirect discrimination and harrasment. Prohibited is physical and psychological violence. In accordance to Public Service Act provisions for prohibitions on discriminiation against employees applies to public servants as well. In paragraph 10 of Estonian Employment Contracts Act impose prohibition on discrimination against employees.

Recpublica of Estonia Employment Contracts Act § 10. Prohibition on discrimination against employees (1) Employers shall not, upon employment and entry into employments contracts, discriminate against persons applying for employment on any of the grounds specified in subsection (3) of this section. (2) Employers shall not discriminate against employees on any of the ground specified in subsection (3) of this section upon remuneration, promotion in employment or office, giving instructions, termination of employment contracts, access to retraining or in-service training or otherwise in employment relations. (3) Discrimination prohibited on the basis of subsections (1) and (2) of this section shall be taken to occur where a person applying for employment or an employee is discriminated against on grounds of sex, racial origin, age, ethnic origin, level of language proficiency, disability, sexual orientation, duty to serve in defence forces, marital or family status, family- related duties, social status, representation the interests of employees or membership in workers' associations, political opinions or membership in a political party or religious or other beliefs.

§ 101. Exceptions to prohibition on discrimination pursuant to law For the purposes of this Act, the following shall not be deemed to be discrimination:

46 1) grant of preferences on grounds of pregnancy, confinement, giving care to minors or adult children incapacitated for work and parents who are incapacitated for work; 2) grant of preferences on grounds of membership in association representing the interests of employees or representing the interests of employees; 3) grant of preferences to disabled workers, including creation of working environment taking account of the special needs of disabled workers; 4) taking account of the sex, level of language proficiency, age or disability upon employment of a person, or upon giving instructions or enabling access to retraining or in-service training, if this is an essential and determinative professional requirement arising from the nature of the professional activity or related conditions; 5) allowing a suitable working and rest time regime which satisfies the religious requirements of an employee.

§ 102. Prohibition on direct and indirect discrimination (1) It is prohibited to discriminate against employees or persons applying for employment either directly or indirectly. (2) Direct discrimination shall be taken to occur where one person applying for employment or an employee is treated less favourably than another person applying for employment or another employee is, has been or would be treated in a comparable situation, on any of the grounds specified in subsection 10 (3). (3) Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put employees or persons applying for employment at a particular disadvantage compared with other employees or persons applying for employment on any of the grounds specified in subsection 10 (3), unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. (4) For the purposes of this Act, harassment shall be deemed to be a form of direct discrimination on any of the grounds specified in subsection 10 (3). Harassment shall be taken to occur where unwanted conduct or act, either verbal, non-verbal or physical, takes place against a person in a relationship of subordination or dependency with the purpose or effect of violating the dignity of the person and of creating a disturbing, intimidating, hostile, degrading, humiliating or offensive environment, and the person rejects such conduct or tolerates it for a reason that it affects his or her access to office or employment or in order to maintain the employment relationship, have access to training, receive remuneration or have access to other advantages or benefits.

47 (5) An instruction given to a person to discriminate against another person shall be deemed to be discrimination.

§ 103. Rights of employees and persons applying for employment who have been subject to discrimination (1) An employee or a person applying for employment against whom the employer discriminated on any of the grounds specified in subsection 10 (3) has the right to demand from the employer compensation for the proprietary and non-proprietary damage caused by the discrimination. (2) A person with whom the employer refused to enter into an employment contract on any of the grounds specified in subsection 10 (3) shall not have the right to demand entry into an employment contract.

§ 11. Benefits for persons raising children The benefits prescribed in subsections 51 (2) and 63 (2), § 67, subsection 79 (2) and § 92 for women raising disabled children or children under three years of age also extend to: 1) persons raising motherless children who are disabled or under three years of age; 2) guardians of children who are under three years of age; 3) guardians or curators of disabled children.

§ 12. Minors Minors enjoy equal rights with adults in employment relationships and disputes, and they have benefits prescribed by law, administrative legislation and collective agreements.

§ 13. Citizens of foreign states and stateless persons (1) Citizens of foreign states and stateless persons who reside in Estonia permanently have rights pertaining to employment equal to those of Estonian citizens unless otherwise prescribed by law. (2) Specific conditions pertaining to employment of citizens of foreign states and stateless persons who are residing in Estonia temporarily or for a specified period of time shall be prescribed by law.

§ 131. Part-time workers (1) Part-time workers shall not be treated in a less favourable manner in an employment relationship than comparable full-time workers unless different treatment is justified on objective grounds arising from the law or collective agreement. Comparable full-time worker

48 means an employee working for the same employer, who is engaged in the same or a similar work, due regard being given to other considerations which may include qualification and skills of the employee. Where there is no comparable full-time worker employed at the same employer, the comparison shall be made by reference to the applicable collective agreement. Where there is no collective agreement, a worker engaged in the same or similar work in the same region shall be deemed to be a comparable full-time worker. (2) An employer shall notify the representatives of the employees and a full-time worker in good time of the opportunity for part-time work and a part-time worker of the opportunity to work for full-time, considering the qualification and skills of the worker.

§ 132. Fixed-term workers (1) Fixed-term workers shall not be treated in a less favourable manner in an employment relationship than comparable permanent workers unless different treatment is justified on objective grounds arising from the law or collective agreement. Comparable permanent worker means an employee working for the same employer, who is engaged in the same or a similar work, due regard being given to other considerations which may include qualification and skills of the employee. Where there is no comparable permanent worker employed at the same employer, the comparison shall be made by reference to the applicable collective agreement. Where there is no collective agreement, a worker engaged in the same or similar work in the same region shall be deemed to be a comparable permanent worker. (2) An employer shall notify the representatives of the employees and a fixed-term worker of vacant jobs in good time during the validity of the fixed-term employment contract, considering the qualification and skills of the worker.

1.3. Convention on the Protection of Human rights and Fundamental Freedoms is in force as well in Estonia, that means Estonia must ensure protection of human rights.

1.4. Currently Estonian parliament „Riigikogu― processes draft of the equal treatment law, in which is definition of discrimination more detailed.

2. In public (administrative) law is prohibition on discrimination also regulated - for example in codes of court procedures (Code of Civil Procedure, Code of Administrative Court Procedure and Code of Criminal Procedure ). Offences Against Equality are imposed in Penal Code (Penal Code §-s 151- 153).

3. In labour disputes court deals with violence and harassment issues and with discrimination claim is possible to turn to the Chancellor of Justice. In accordance to Chancellor of Justice Act § 19 subsection 2 has everyone the right of recourse to the Chancellor of Justice for the conduct a conciliation procedure if he or she finds that a natural person or a legal person in private law has discriminated against him or her on the basis of sex, race, nationality(ethnic origin), colour, language, origin, religion or religious beliefs, political or other opinion, property or social status, age, disability, sexual orientation or other attributes specified by law.

49 4. Equal treatment for everyone is main principle in every court procedures (criminal, administrative and civil courts procedures).

5. In labour disputes has employees, who has been treated unequally, right for the material and immaterial damage compensation. The court shall determine immaterial damage amount, whereas in case employer objects, employer self shall prove that there was no discrimination.

6. Estonian Republic has incorporated relevant European Union directive on estonian legislation and estonian legislation meets the requirements of the European Framework of harassment and violence at work.

7. Unfortunately there is no interesting cases of Estonian court practice.

50 FINNISH REPORT

EUROPEAN ASSOCIATION OF LABOUR COURT JUDGES

Annual Congress – Vienna 2008

QUESTIONNAIRE

Combating Harassment and Violence at Work Finnish Report by Jorma Saloheimo Vice President Labour Court of Finland

1.Definition and scope

The regulation of harassment and threat of violence at work is to be found in three statutes, which have partly overlapping provisions on these matters.

The rules on prevention of threat of physical violence at work are contained in Sec. 27 of the Occupational Health and Safety Act (2002). The provision reads as follows:

(1) The work and working conditions in jobs entailing an evident threat of violence shall be so arranged that the threat of violence and incidents of violence are prevented as far as possible. Accordingly, appropriate safety arrangements and equipment needed for preventing or restricting violence and an opportunity to summon help shall be provided at the workplace. (2) The employer shall draw up procedural instructions for such jobs and workplaces as referred to in subsection 1. In the instructions, controlling threatening situations must be considered in advance and practices for controlling or restricting the effects of violent incidents on the employees‘ safety must be presented. When necessary, the functioning of the safety arrangements and equipment must be checked.

Sec. 28 of the same Act is a general provision concerning the employer‘s duty to take measures against harassment and other inappropriate treatment of an employee occurring at work and causing hazards or risks to the employee‘s health. After becoming aware of the matter, the employer shall by available means take measures for remedying the situation. The provision applies regardless of the reason for the inappropriate action and aims at protecting both the physical and psychological well-being of employees.

The first express provision on harassment in Finland was introduced in 1995 in the Equal Treatment Act. It deals with sexual harassment and defines such action as discrimination based on sex. The regulation has later in 2005 been complemented so as to cover also ―other derangement related to sex‖. Also giving an order or instruction to commit such harassment or derangement is equated with discrimination (Sec. 7(5) of the Act).

In a separate provision it is stated that the employer is deemed to be guilty of sex discrimination if he has neglected to take all available measures to prevent an employee from being subjected to sexual harassment or derangement after he has become aware of the matter (Sec. 8 d of the Equal Treatment Act).

Finally, a new Non-Discrimination Act was adopted in 2004 with the purpose of implementing the EU Race Discrimination Directive and the General Framework Directive on Equal Treatment. The Act covers prohibited grounds for discrimination other than sex (race, ethnic origin, disability, religion etc.) and contains also a provision on harassment due to such grounds. Harassment means the deliberate or de facto infringement of the dignity and integrity of a person or group of people by the creation of a intimidating, hostile, degrading, humiliating or offensive environment.

All three Acts mentioned above apply to workers who are in an employment relationship, including those employed by a temporary employment agency, and workers employed in a relationship governed by public law (civil servants, municipal workers etc.). Furthermore, the Equal Treatment Act applies to persons who are in a subordinate or dependent position similar to that of a worker. Otherwise the Finnish labour law system does not recognise a third category between workers and non-workers.

The general idea is that an action envisaged in the provisions mentioned above becomes prohibited harassment as soon as the harasser is made aware that his/her action is undesirable to the victim. In clear cases and certain other circumstances the victim‘s express negative reaction is, however, not needed.

The rules on harassment are applicable no matter who the harasser is: a fellow worker, the employer‘s representative or a third party.

2.Regulatory framework (national)

2.1Statutory regulation

An overview of the relevant legislation concerning harassment and violence at work is given above. A distinction between public (administrative) law and private law does not seem relevant here.

Criminal law comes into play when dealing with the most serious cases of harassment. Such intentional and gross action can be punished under the title of discrimination at work under Section 2, Chapter 47 of the Penal Code. Also the general rules of the Penal Code concerning assault and battery apply to violence at work.

Victimisation is defined and treated separately both in the Equal Treatment Act and in the Non- Discrimination Act. Under the provisions in question, no one may be placed in an unfavourable position or treated in such a way that they suffer adverse consequences, such as termination of an employment relationship, because of having complained or taken action to safeguard equality. The sanctions for victimisation are the same as for other forms of discrimination.

2.2Non-statutory regulation

An extensive guidance on identifying and preventing the risk of workplace violence is found in the web pages of the Labour Inspectorate. Also several trade unions have published material on the prevention of this risk in their respective sectors, such as health care to give one important example.

The Labour Inspectorate has also published material on harassment at work as an occupational health and safety problem.

The web pages of the Office of the Equality Ombudsman contain guidance on what sexual harassment is, how it is treated under law, and what an employee who is subjected to harassment can do to cope with the situation.

The central labour market organisations have drawn up a widely distributed brochure on issues relating to sexual harassment. The publication ―Good behaviour permitted – harassment prohibited!‖ deals with the definition of harassment, the measures the victim can take, the position of the harasser, and the employer‘s duties and responsibility relative to harassment.

In addition, several large companies or public institutions have published codes of practice on the subject. For instance, the University of Helsinki has issued such guidance, both on-line and as a paper version, as part of a zero tolerance policy against all kinds of discrimination.

3.Institutional framework

Looking at bodies outside the judiciary, the most important institution occupied with prevention and monitoring in the field of harassment and violence at work is the Labour Inspectorate. The labour inspectors carry out workplace inspections both regularly and if invited for a particular reason. They give guidance to clients at workplaces, and may also take measures to eliminate or remedy the non- complying conditions. The labour inspection district offices also have staff specialised in harassment prevention.

Special authorities in the field of gender equality are the Equality Ombudsman and the Equality Commission. They are, however, central bodies and do not have a district organisation. This means that in practice they concentrate on equality issues requiring legal interpretation and usually do not deal with individual harassment cases, which are often referred to labour inspectors.

4.Procedures

4.1. Extra-judicial and pre-judicial procedures

Finland is a country with high union density and established workplace participation mechanisms. A harassment case would fall within the competence of the labour safety representative or the shop steward, depending on whether the emphasis is on health and safety or discrimination aspects of the case. The employee or his or her representative may notify the employer‘s representative of the problem and ask for negotiations.

53 the parties. In the last instance however, it is the employer‘s legal duty to take the necessary managerial steps to put an end to any harassment occurring at the workplace.

4.2. Judicial procedures

The judicial process in a harassment case may concern awarding damages to the victim or sentencing the harasser to pay a fine or to imprisonment. In both cases the regular court has jurisdiction. Moreover, both kinds of claims may be treated in the same proceedings.

It is the alleged victim who has locus standi in such litigation. The claimant may be supported by the public prosecutor if a criminal charge is presented. In the latter case, and presuming that the charge is based on a breach of the Occupational Health and Safety Act, the whole criminal investigation is typically initiated by the Labour Inspectorate. The representative of the Inspectorate is then also heard in court.

Harassment cases are not treated in the Labour Court, because this court is competent only in collective labour disputes, and harassment issues are so far not regulated in collective agreements.

As is common in other cases of discrimination, the main rule in harassment cases is that the burden of proof is reverted. Basically, the complainant has to establish that he or she has been subjected to harassment at the workplace. In sexual harassment cases the complainant‘s position is facilitated by Sec. 10 of the Equal Treatment Act, which provides that the employer must upon demand and without delay give an explanation to any one who is of the opinion that he or she has been discriminated against on the basis of gender. In case of sexual harassment this explanation should state what measures the employer has taken to prevent harassment from taking place.

There are two exceptions from the rule of the reverted burden of proof. First, it is not applied in criminal cases. Second, in victimisation cases concerning prohibited grounds of discrimination other than sex, the burden of proof is also on the claimant.

5.Remedies and sanctions

Probably the most important remedy in harassment cases is a pecuniary compensation, which the court may order to be paid to the wronged party. This is provided for in the Equal Treatment Act and in the Non-Discrimination Act. The upper limit of the compensation is 15,000 EURO, but if warranted by the nature of the offense and by the circumstances, the limit may be exceeded. The purpose of the remedy is mainly to compensate for the suffering and other immaterial damage incurred to the victim. In addition to this special compensation, the court may order the actual damages of the victim to be compensated by virtue of the general rules on liability for damages.

Punishment for the crime called discrimination at work, the elements of which cover also harassment, can be a fine or imprisonment up to one year.

Administrative measures in harassment prevention fall into the competence of the labour inspection authorities. As has been explained above, the inspectors carry out workplace inspections whereby they may gather information and interview workers, and the may issue administrative instructions to remedy non-complying situations as well as notify police authorities with a criminal offence they detect.

54 6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

All EU Directives, mentioned in the questionnaire, have been implemented in the Finnish legal order mainly through the three statutes that have been discussed above. There have been no serious doubts as to whether the implementation has been correct regarding, for instance, the rules on harassment.

It may be of interest to inform that a reform is under preparation, the purpose of which is to combine the Equality Act and the Non-Discrimation Act into one single statute.

As regards the Framework agreement on harassment and violence at work,

55 GERMAN REPORT

QUESTIONNAIRE

Combating Harassment and Violence at Work

Legal position in Germany

1. Definition and scope

The German legal system does not provide specific statutory regulation on harassment, violence, bullying etc. in relation to work. There is no general statutory provision that prohibits harassment at the workplace and determines legal consequences like a punitive fine, imprisonment, reinstatement or the award of damages. Necessarily, this corresponds to the absence of a general statutory definition of the legal term ‖harassment‖.

However, the transposition of the EU Directives 2000/43/EC and 2000/78/EC into national law in the year 2006 has created a specific statutory definition of harassment in the context of discrimination: Art. 3 of the General Equal Treatment Act (Allgemei-nes Gleichbehandlungsgesetz - AGG) defines harassment to be a form of discrimination, when unwanted conduct related to race, ethnic origin, sex, religion or belief, disability, age or sexual identity takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. This definition is applicable only in cases of discrimination covered by the Directives 2000/43/EC and 2000/78/EC.

The lack of a general statutory regulation on harassment at work has conferred an important role on German courts dealing with a variety of cases of harassment at the workplace, irrespective of discrimination. In 1997, the German Federal Labour Court (Bundesarbeitsgericht) approved the definition of harassment in cases of systematic hostility, bullying or discrimination committed by superiors or among employees (15.01.1997, 7 ABR 14/96). Since the General Equal Treatment Act has come into force, jurisdiction has extended the definition of harassment in Art. 3 to all manifestations of what we call ‖Mobbing‖ in German: any unwanted conduct with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment, caused by a systematic and continuous violation of personal rights, reputation or physical health (BAG, 25.10.2007, 8 AZR 593/06).

According to the latter definition, protection against harassment is not limited to the categories of race, ethnic origin, sex, age, religious belief, disability or sexual identity. It applies regardless of the reason for the harassment and benefits employees as well as all other categories of workers, including independent contractors. Under German law any person is protected against harassment, i.e. irrespective of the existence of an employment contract between the offender and the victim. Therefore, the worker is also protected against harassment by third parties (e.g. clients, pupils).

The German concept of harassment requires objective and subjective elements: The offender‘s conduct must cause the violation. Furthermore, the harassment must be attributable to the offender‘s fault (either malicious/conditional intent or negligence). E.g. a kiss in the context of a love affair does not meet the subjective criteria of harassment. Neither is the definition based on the unilateral perception of the victim.

Even though freedom of expression can come into conflict with other human rights, the definition of harassment does not allow for balancing such legally protected interests. Once a behaviour meets the criteria of harassment as defined above, such violation of the victim‘s individual rights cannot be justified with reference to the constitutional right to freedom of expression. As a result, the law preventing harassment does not have any impact on the human right of freedom of expression.

The definition of harassment under German law covers different kinds of harassment such as physical, psychological and sexual harassment, depending on the conduct shown by the offender and the harm caused to the victim. Art. 3 of the General Equal Treatment Act again provides a statutory definition of the term ―sexual harassment‖ within the specific context of discrimination. According to the recognised general definition, sexual harassment shall be deemed to be a form of discrimination, where unwanted conduct of a sexual nature, including sexual acts or requests to engage in such acts, physical touching of a sexual nature, comments or remarks of a sexual nature, or the unwanted showing or visible display of pornographic images, has the purpose or effect of violating the dignity of the affected person, in particular by creating an intimidating, hostile, degrading, humiliating or offensive environment. Here as well, the term ―environment‖ illustrates the systematic and continuous proceeding of the offender – one of the key components of the German understanding of ―Mobbing‖, i.e. harassment.

2. Regulatory framework (national)

2.1 Statutory regulation

Due to the absence of specific statutory regulation on harassment at work (out of the context of discrimination), German courts resort to general statutory provisions of private or criminal law in order to be able to deal with the social phenomenon of harassment. All such statutory regulation can ultimately be traced back to the German Basic Constitutional Law (Grundgesetz, GG) and its basic rights insofar as the harasser affects the victim‘s basic rights to personality (Art. 2 sec. 1, Art. 1 sec. 1 GG) and to physical inviolability (Art. 2 sec. 2 GG).

It is the employer‘s contractual duty of good faith to respect these fundamental rights and to protect an employee against harassment in the workplace. This obligation is implied by law in every contract of employment. In the specific context of discrimination, this general contractual obligation has been concretised by statute: According to Art. 12 sec. 1 of the General Equal Treatment Act (AGG) the employer is obligated to take all actions necessary to protect employees from sexual harassment, including preventive measures. If any employee violates the prohibition of discrimination, the employer shall in each case take appropriate, necessary and reasonable action to prevent any further discrimination, e.g. by warning, relocating, transferring or dismissing the employee (Art. 12 sec. 3 AGG).

The victim can claim for damages under the German Civil Code (Bürgerliches Gesetzbuch, BGB). Under Art. 280 sec. 1 BGB the employer is liable for damages caused by a breach of the employment contract if he/she fails to comply with his/her contractual obligation of good faith named above, unless this breach of duty is not at the employer‘s fault. According to Art. 823 sec. 1 BGB, a person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable for making compensation to the other party for the damage arising from this.

In the specific context of discriminatory harassment, Art. 15 sec. 1 AGG provides that the employer is obligated to compensate employees for any damages resulting from a violation of the prohibition of discrimination, unless the employer is not liable for the breach of duty. According to Art. 15 sec. 2 AGG, the affected employee may demand reasonable compensation in the form of monetary damages for any non-economic losses.

The existence of harassment at work may also have an impact on proceedings of unfair dismissal under Art. 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz, KSchG), once the dismissed employee justifies a certain misconduct or a long period of illness by claiming to be a victim of harassment.

The offender is liable to prosecution under German criminal law once the harassment meets elements of a criminal offence, e.g. grievous bodily harm as it is defined in Art. 223 of the Penal Code (Strafgesetzbuch, StGB), coercion (Art. 240 StGB) or deliberate insult (Art. 185 StGB).

57 prohibition of disciplinary actions in the specific context of discriminatory harassment. Thus, any action by an employer against an employee in retaliation for initiating complaint proceedings against harassment is void under German law.

2.2 Non-statutory regulation

Collective agreements in Germany are legally enforceable, once the parties of the employment contract are bound to it by membership of the contracting trade union or employers‘ association or if the state exceptionally declares the collective agreement to be generally applicable in a certain sector of the trade/industry. In practice, collective agreements play a major role in the setting of wages, working times and other conditions of employment within the statutory framework, without having to be effectively incorporated into the individual contract of employment. In spite of this practical importance of collective bargaining, collective agreements in general do not contain specific provisions on harassment at work.

Rules to prevent and to sanction harassment and violence at work can rather be found on the level of the undertaking. During the last decade, an increasing number of companies in Germany have unilaterally issued in-house codes of practice, some of which also deal with harassment at work. However, the legally binding character of codes of ethical conduct is highly controversial, especially when they set up rules for the employee‘s conduct outside the workplace which are not directly rooted in the employment contract itself.

In undertakings with existing works councils the employer cannot unilaterally enact such codes of conduct: Art. 87 sec. 1 (1) of the Works Council Constitution Act (Betriebsverfassungsgesetz, BetrVG) confers a right of co-determination on the works council for matters relating to the establishment‘s rules of operation and the conduct of employees in the establishment. Form and substance of in-house rules on harassment at the workplace can therefore be strongly influenced by the workers‘ representatives. Many co-determined agreements between employer and works council (―Betriebsvereinbarung‖) also establish specific helpdesks and contact points for victims of harassment.

3. Institutional framework

In Germany, harassment victims can resort to a multitude of public and private institutions which provide consulting services. Art. 25 of the General Equal Treatment Act has established a state-run Equality Committee (―Antidiskriminierungsstelle‖) which any person discriminated against can turn to.

In every department of the public service, one female employee must be appointed as Equal Opportunity Commissioner (―Gleichstellungsbeauftragte‖). She monitors and assists with the implementation of all measures for the equal treatment of men and women and protection against sexual harassment at work. Under Art. 13 of the General Equal Treatment Act, every employer is obliged to establish an ombudsman who has to deal with the employees‘ complaints in cases of harassment on discriminatory grounds et al..

Due to their proximity to the workplace, works councils are of particular importance for prevention, monitoring and conflict resolution in the field of harassment and violence at work. In establishments with at least five employees, the employees may elect a works council. The size of this representative body depends on the number of employees in the establishment. Under the Works Council Constitution Act (BetrVG), the works council has a wide range of rights to information, consultation and co- determination.

According to Art. 75 sec. 1 BetrVG, the employer and the works council shall ensure that every person employed in the establishment is treated in accordance with the principles of law and equity. Art. 80 sec. 1 BetrVG authorises the works council to observe the employer‘s compliance with statutory and non-statutory regulations and to request measures against harassment and violence at work.

Art. 84 sec. 1 BetrVG provides that every employee shall be entitled to make a complaint to the competent bodies in the establishment if he/she feels discriminated against or treated unfairly or

58 otherwise put at a disadvantage by the employer or by other employees of the establishment. He/she may call on a member of the works council for assistance or mediation. Victims of harassment may also directly contact the works council, as under Art. 85 sec. 1 BetrVG the works council shall hear employees‘ grievances and, if they appear justified, induce the employer to remedy them.

4. Procedures

4.1 Extra-judicial and pre-judicial procedures

Non-judicial complaints procedures are provided in the Works Council Constitution Act (works council) and - for cases of specific discriminatory harassment - in the General Equal Treatment Act (ombudsman). For further details we refer to sec. 3 of this questionnaire.

4.2 Judicial procedures

In Germany, cases of harassment at work are primarily brought before employment tribunals and criminal courts. Employment tribunals are empowered to deal with all legal disputes between employer and employee arising from the employment relationship. Due to this exclusive competency of labour jurisdiction, ordinary civil litigation is not of practical relevance in this context, neither administrative procedure.

Criminal procedure is ruled by the principle of presumption of innocence (―in dubio pro reo‖). Labour court procedure follows the rules of burden of demonstration and of proof. In general, this burden falls on the claimant. In an action for damages the plaintiff must show that the alleged conduct satisfies each single element of the term ―harassment‖ as defined above, and to submit the necessary evidence. Furthermore, the specific material or immaterial damage has to be demonstrated and it must also be proven to what extent it has been caused by the actions of harassment.

In practice, these strong requirements make it rather difficult for harassment victims to achieve financial compensation under German law. Few actions for damages have been successful so far. Many plaintiffs fail at the very first hurdle as they cannot substantiate their claim sufficiently; in these cases evidence is not even heard. Therefore, many consulting institutions advise harassment victims to keep a ―harassment diary‖ in order to be able to give sufficient substantiation in potential legal proceedings.

This general rule of burden of demonstration and of proof is modified in the specific context of discrimination: Art. 22 of the General Equal Treatment Act states that the employee only needs to demonstrate and prove mere indications of discriminatory harassment. Subsequently, the burden falls on the employer to show and prove that either discrimination is not existent or that the difference in treatment has been justified by law. Another modification takes place in unfair dismissal proceedings: Here, it is up to the employer to substantiate and prove the alleged fairness/social justification of the dismissal.

First access to justice in harassment cases is neither limited to professional representation by a barrister nor to a minimum amount of money involved in the case: Every employee has the right to bring an action to an employment tribunal of first instance, provided that his/her own rights have been violated either by direct actions of harassment or indirectly in unfair dismissal proceedings (locus standi).

Harassment victims must enforce their claim to compensation for material and/or immaterial damages within the statutory time limits. Art. 195 of the German Civil Code lays down a general limitation period of three years, beginning with the end of the year in which the claim has come into existence. As the understanding of ―harassment‖ is characterised by a systematic and continuous proceeding of the offender which might span several years, German courts resort to the appearance and detectability of the damage as a starting point for the course of the limitation period. This starting point is also applicable to the - generally much shorter - cut-off periods (e.g. three or six months) set out in many collective agreements.

59 Art. 15 or the General Equal Treatment Act sets out an even shorter period: According to this, any claim for damages under this Act (cf. sec. 2.2 of this questionnaire) must be made in writing within an exclusionary period of two months, counting from the date on which the affected employee obtains knowledge of the discrimination. An action for unfair/wrongful dismissal must be filed within three weeks after having received the written notice (Art. 4 of the Unfair Dismissal Act, KSchG).

5. Remedies and sanctions

All the criminal offences mentioned above (cf. sec. 2.1 of this questionnaire) induce the imposition of a penal fine. Alternatively, the committer of battery can be punished with up to five years‘ imprisonment; coercion may result in up to three years‘ imprisonment and deliberate insult in up to one year‘s imprisonment. Battery and insult, however, are only prosecuted if the victim formally files a petition for a penalty within the time of three months; here, the mere reporting of the offence to the police does not suffice for criminal prosecution.

The victim can sue his colleagues, superiors and also the employer for financial compensation provided that the aforementioned themselves have taken an active part in the acts of harassment. The employer can also be ordered to pay damages for failing to comply with the contractual obligation of good faith and proper care: Whenever the employer hears about acts of harassment in the undertaking, he/she must intervene, clarify the facts and take organisational measures such as the transfer of the involved personnel, staff talks, warnings, reprehension or even the dismissal of the offender. This obligation results from both the employment contract and - in the specific context of discriminatory harassment - statute (i.e. Art. 12 sec. 3 of the General Equal Treatment Act).

If the employer culpably omits such feasible and appropriate protection of the affected employee‘s rights, he/she is liable for financial compensation that covers material as well as immaterial damages of the victim. However, as to the victim‘s duty to mitigate damages, the courts take into account whether the employee actually has or hypothetically could have been able to complain about the harassment and to ask the employer to produce relief. The courts also check whether and to what extent the victim has shown contributory negligence as to the damage caused and whether the colleagues‘/superiors‘ behaviour merely shows a reaction to provocations by the pretended victim of harassment.

For establishments with generally more than ten employees, the German Unfair Dismissal Act (KSchG) establishes the requirement of social justification for a dismissal declared by the employer: The dismissal is justified only if it is due to person-related, conduct-related or economic reasons. A dismissal related to harassment can be justified by conduct-related reasons if it is the offender who has been dismissed by the employer. On the other hand, the dismissal of the victim cannot be justified by certain misconduct or a long period of illness if this is due to acts of harassment attributable to the employer (cf. above). In these cases, the employee can also sue the employer to be employed according to the contractual job description.

A socially unjustifiable dismissal is unfair, void and without any legal effect, i.e. it does not terminate the contract of employment. Consequently, legal proceedings for unfair dismissal necessarily result in a court-ordered reinstatement if the employer has not been able to demonstrate and prove social justification; financial compensation or redundancy payments can only be mutually agreed by the parties themselves, provided that this compromise also includes the termination of the employment contract (something which in practice happens very often in court proceedings in unfair dismissal cases).

6. EU context

German anti-discrimination legislation as well as statutory regulation on health and safety at work have been strongly influenced by EU law. The Directive 89/391/EEC was transposed into German national law in 1996 by the Industrial Safety Act (Arbeitsschutzgesetz). Under Art. 4 of this Act, the employer is obligated to organise the workplace in a way that minimises risks for the employees‘ health and safety. Measures taken, including the prevention of occupational risks and the provision of information and training, must be updated in line with technical progress and must combat the risks at source.

60 However, this Act primarily deals with industrial safety concerning the actual setting of the workplace, production facilities and work equipment. Due to this focus on the organisational environment of the workplace this Act is less relevant in cases of harassment and violence as a result of human conduct at work.

A much stronger impact of EU law on legislation in Germany in relation to harassment and violence at work can be seen in the General Equal Treatment Act of 2006 which transposes the Directives 2000/43/EC and 2000/78/EC into national law. This Act contains not only a statutory definition of ―harassment‖ but also rules on institutions, procedure and remedies for harassment cases (cf. above). However, its scope is limited to the specific context of discrimination.

Beyond the field of discriminatory/sexual harassment, German courts have to deal with cases of bullying under the general legal provisions as described above. The absence of a specific ―Anti- harassment Act‖ results in a lack of statutory procedural provisions as negotiated by the European Social Partners in the Framework Agreement on Harassment and Violence at Work in 2007. Rather, aspects like investigation without undue delay, impartial hearing and support with reintegration are included in the general concepts of fairness of a dismissal and of negligence and fault in damage claims unless they have been agreed upon in collective or works council agreements (cf. sec. 2.2 of this questionnaire). The awareness of employers for safety and health of employees in the context of harassment and violence at work is nevertheless growing in Germany. This might to some extent be due to the deterrent effect of court decisions awarding considerable financial compensation to harassment victims.

7. Examples

In practice, the German term ―Mobbing‖ is used by many an employee during court hearings e.g. of dismissal cases, even though this allegation is not based on the legal definition of harassment mentioned above. Typical conflict situations in an employment relation generally do not allow for the assumption of systematic and continuous bullying; not every quarrel or disagreement between colleagues and/or superiors qualifies for ―harassment‖ under the law. This suggests that the general public in Germany has a much broader understanding of ―harassment‖ than the relevant legal term.

Within the last decade, there has been a number of court decisions though, which have approved the existence of legally qualified ―harassment‖, carefully appraising and balancing the particularities of the individual case. Among these rulings there were cases in which superiors repeatedly insulted and threatened an employee or systematically turned a blind eye to the employee‘s performance. Company information was withheld from the employee, his/her letters of complaint were not answered. A multitude of unjustified warnings was issued, and applications for leave were continually refused. Employees were intentionally either over- or under challenged and transferred to working posts outside of their set of skills, contrary to the contract of employment. Others were assigned an isolated and badly equipped workplace (e.g. an empty office without computer). In some cases, the victims have been awarded financial compensation for material damages, e.g. the loss of earnings due to sickness caused by harassment, or for immaterial damages.

In 2006 the employment tribunal of Stuttgart upheld a complaint for compensation for immaterial damage (19.10.2006, 6 Ca 12098/05). This case is particularly interesting as the plaintiff was able to meet the burden of demonstration and of proof: Over the course of more than three years, he had kept detailed and complete records of about 100 incidents of harassment in a ―harassment diary‖. This allowed him to give sufficient substantiation and evidence for the following continuous acts of harassment by his superior and employer:

The company car (a VW Touran) which had previously been placed at the disposal of the employee was exchanged for a smaller car (a Daewoo (Chevrolet) Matiz). His home-office was closed and replaced with an unfurnished office on the employer‘s premises. In addition, a retrospective instruction to write complete reports on each day of the preceding month and a futile briefing to send weekly reports directly to the head of the personnel department - even for times of sick leave - and finally the unsolicited issue of a reference that contained a detrimental grading convinced the employment tribunal

61 that these measures were taken by the employee‘s superior and tolerated by the employer with the purpose of making the employee resign from his job.

The court awarded financial compensation of EUR 10.000,00 for the immaterial damages suffered by the employee. However, the claim for compensation of material damages (about EUR 87.600,00) was dismissed as the claimant failed to give sufficient demonstration and evidence of the necessary causal link between the acts of harassment and his illness (depression, posttraumatic stress disorder). The Labour Court of Appeal Baden-Württemberg upheld this decision of the employment tribunal Stuttgart (28.06.2007, 6 Sa 93/06). This decision has become final.

Helmut Zimmermann Dr. Jessica Sellin, LL.M.

62 HUNGARIAN REPORT

RESPONSE TO QUESTIONNAIRE

Combating Harassment and Violence at Work Hungary

Prepared by Judge Tünde Handó

1Definition and scope

In Hungary the Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities (hereinafter Equal Treatment Act) gives a definition of harassment: Harassment is a conduct of sexual or other nature violating human dignity related to the relevant person‘s characteristics defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around the particular person.

According to Article 7 harassment together with direct negative discrimination, indirect negative discrimination, unlawful segregation, retribution and any orders issued for those means a violation of the principle of equal treatment.

The Act IV of 1978 on the Criminal Code also regulates the harassment. It says:

Any person who engages in conduct intended to intimidate another person, to disturb the privacy of or to upset, or cause emotional distress to another person, or who is engaged in the pestering of another person on a regular basis, such as frequently making unsolicited calls to another person by way of telecommunications equipment or actually harassing another person is guilty of a misdemeanor punishable by imprisonment for up to one year, community service work, or a fine, if such act does not result in a criminal act of greater gravity.

63 is guilty of a misdemeanor punishable by imprisonment for up to two years, community service work, or a fine.

Any person who commits the act of harassment: a) against his/her former spouse or domestic partner, b) against a person under his/her care, custody, supervision or treatment, shall be punishable by imprisonment for up to two years, community service work, or a fine in the cases described in Subsection (1), or by imprisonment for up to three years for the felony offense described under Subsection (2) (Article 176/A.).

Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability etc)?

As we can see from the above mentioned definition the regulation of harassment refers to Aricle 8. Article 8 regulates the direct discrimination.

It says: All dispositions as a result of which a person or a group is treated or would be treated less favourably than another person or group in a comparable situation because of his/her a) sex, b) racial origin, c) colour, d) nationality, e) origin of national or ethnic minority, f) mother tongue, g) disability, h) state of health, i) religious or ideological conviction, j) political or other opinion, k) family status, l) motherhood (pregnancy) or fatherhood, m) sexual orientation, n) sexual identity, o) age, p) social origin, q) financial status, r) part-time nature or definite term of the employment relationship or other relationship aimed at work, s) membership in an organisation representing employees‘ interests, t) any other status, characteristic feature or attribute (hereinafter collectively: characteristics) are considered direct discrimination.

Because the law says ―any other status/characteristic feature/attribute‖ (that is not listed) the harassment can be related to, it applies regardless of the reason for the harassment, but there should be a concrete feature or status.

64 Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors? Does the definition contain subjective elements i.e. does it have to be intentional and/or is it based on the perception of the victim)? Or is the definition objective, (i.e. not necessarily intentional and not based on the perception of the victim)?

1. The Equal Treatment Act rules that employers shall observe the principle of equal treatment (and the prohibit of harassment) in respect of the employment relationships, and persons entitled to give instructions also shall observe the principle of equal treatment (and the prohibit of harassment) in respect of other relationships aimed at work and relationships directly related thereto (Article 5, d) point). Therefore the rule applied for not just the employees but all kind of workers.

But there is a lack of the definition: it does not regulate the harassment is committed by not the employer but the other employee. For this situation the Labour Code contains general regulation. It says: Employees shall cooperate with their co-workers and perform work, and otherwise proceed in a manner without endangering the health and safety of others, without disturbing their work and causing financial detriment or damaging their reputation. Employers shall ensure proper conditions for occupational safety and health in observation of the provisions pertaining thereto. Employers shall organize work so as to allow the employees to exercise the rights and fulfill the obligations originating from their employment relationship;

2. The definition of the harassment is the following: harassment is a conduct of sexual or other nature violating human dignity related to the relevant person‘s characteristics defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around the particular person. So the definition contains some subjective element: first of all the ―purpose‖, but at the same time it can be substituted with the ―effect‖ which assumes the perception of the victim.

The definition of harassment regulated by the Criminal Code also requires the intent.

Does the law preventing harassment have any impact of the human right of freedom of expression?

In the aspect of the committer it depends all the circumstances that his constitutional right for freedom of expression is stronger or the victim's right against the harassment.

There was a case in front of the Equal Treatment Authority when finally the Authority stated that the dispute over the work problems and the employer's instruction

Is a distinction made between (for example) physical, psychological and sexual harassment?

No. Every conduct of sexual or other nature that violates human dignity is a harassment.

Is the worker also protected against harassment by third parties (clients, pupils)?

No, such kind of protection is not regulated. However it is a very current problem in Hungary nowadays, there are lots of news about pupils who harass the teachers.

As we previously mentioned the law does not regulate the harassment is committed by not the employer but the other employee. For this situation the Labour Code contains general regulation. It says: Employees shall cooperate with their co-workers and perform work, and otherwise proceed in a manner without endangering the health and safety of others, without disturbing their work and causing financial detriment or damaging their reputation. Employers shall ensure proper conditions for occupational safety and health in observation of the provisions pertaining thereto. Employers shall organize work so as to allow the employees to exercise the rights and fulfill the obligations originating from their employment relationship;

6.Regulatory framework (national)

6.1statutory regulation

Give a brief overview of the relevant legislation concerning harassment and violence at work. If possible, make a distinction between public (administrative) law, private law, and criminal law.

The Hungarian Constitution (Act XX of 1949.) states that in the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall be arbitrarily denied of these rights. No one shall be subject to torture or to cruel, inhuman or humiliating treatment or punishment (Article 54.§). The Republic of Hungary shall respect the human rights and civil rights of all persons in the country without discrimination on the basis of race, color, gender, language, religion, political or other opinion, national or social origins, financial situation, birth or on any other grounds whatsoever.The law shall provide for strict punishment of discrimination. The Republic of Hungary shall endeavor to implement equal rights for everyone through measures that create fair opportunities for all (Article 70/A.§). The Civil Code states that the breach of the equal treatment constitutes the breach of the victim's personality rights. The victin is entitled for compensation and other remedies.

The Labour Code also regulates the equal treatment. It says: In connection with employment relations the principle of equal treatment must be strictly observed. Any consequences of the breach of the principle of equal treatment shall be properly remedied; the remedy shall not result in any violation of or harm to the rights of another worker. This regulation of the Labour Code is applicable to the civil and public servants' relationship.

The Equal Treatment Act regulates both the public and private law. The Act prohibits harassment, unlawful segregation, and retribution.

Harassment is a conduct of sexual or other nature violating human dignity related to the relevant person‘s characteristics defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around the particular person.

66 Unlawful segregation is a conduct that separates individuals or groups of individuals from other individuals or groups of individuals in a similar situation on the basis of their characteristics as defined in Article 8, without any law expressly allowing it.

Retribution is a conduct that causes infringement, is aimed at infringement, or threatens with infringement, against the person making a complaint or initiating procedures because of a violation of the principle of equal treatment, or against a person assisting in such a procedure, in relation to these acts.

The Act IV of 1978 on the Criminal Code also regulates the harassment. It says:

Any person who conveys the threat of force or public endangerment intended to inflict harm upon another person, or upon a relative of this person, to put that person in fear that such threat is imminent, is guilty of a misdemeanor punishable by imprisonment for up to two years, community service work, or a fine.

Include in your description the protection against victimisation (protection of a worker who protests or appeals against harassment).

The Act XXII of 1992 on Labour Code states: Exercise of rights shall be construed improper if it is intended for or leads to the injury of the rightful interests of others, restrictions on the assertion of their interests, harassment, or the suppression of their opinion (Article 4).

The Equal Treatment Act regulates retribution. Retribution is a conduct that causes infringement, is aimed at infringement, or threatens with infringement, against the person making a complaint or initiating procedures because of a violation of the principle of equal treatment, or against a person assisting in such a procedure, in relation to these acts (Article 10, subsection (3)).

In these cases the employee entitled to compensation for damages.

If the employer terminated the employee‘s employment relationship because of the protest, it is unlawful, and upon the request of the employee, the employee shall continue to be employed in his original position (reinstatement of the employee could not be exonerated).

6.2 non-statutory regulation

Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes of practice, recommendations etcetera. Explain the content of these instruments.

There are not too many of these, we suppose that the big international companies may have some regulation regarding harassment in its collective agreement but we don‘t have knowledge about these. We don‘t know about any codes of practice.

The Equal Treatment Authority has an position on the concept of harassment and sexual harassment. It deals with the Hungarian and European Union concept of harassment and the burden of proof.

7.Institutional framework

According to Article 7 the harassment together with direct negative discrimination, indirect negative discrimination, unlawful segregation, retribution and any orders issued for those mean a violation of the principle of equal treatment. Therefore the same intruments can be applied as in the case of breach of equal treatment.

The employee can suit the employer on the court for compensation or other remedies for example restoration the employment relationship if the cause of the termination was harassment.

The victim can turn to the labour court and even to the civil court under personal law if the harassment is not related to employment relationship for compensation or other remedies.

Compliance with the obligations of equal treatment is overseen by a public administration body called: Equal Treatment Authority.

If the Authority has established that the provisions ensuring the principle of equal treatment laid down herein have been violated, they may a) order that the situation constituting a violation of law be eliminated, b) prohibit the further continuation of the conduct constituting a violation of law, c) order that its decision establishing the violation of law be published, d) impose a fine, e) apply a legal consequence determined in a special act.

The legal consequences shall be determined taking into consideration all circumstances of the case, with particular regard to those who have been effected by the violation of law, the consequences of the violation of law, the duration of the situation constituting a violation of law, the repeated demonstration of conduct constituting a violation of law and the financial standing of the person or entity committing such a violation. The legal consequences can also be applied collectively.

The amount of the fine imposed may vary from HUF fifty thousand (200.- euro) to HUF six million (24.000.- euro) (Section 16.).

The Labour and Employment Control and Supervision Service also have a right to impose fine or use other remedies.

If one of the authorities determine that an employer violates the rules of equal treatment, this employer could not be entitled to receive statutory or EU subsidy and its name and address is published on the home page of the Equal Treatment Authority and the Labour and Employment Control and Supervision Service.

In the case of harassment regulated by the Criminal Code, the police and the public prosecution inquires. If the public prosecutor brings an accusation, the criminal court decides the case.

8. Procedures

4.1. extra-judicial and pre-judicial procedures

See above

A mediation procedure is possible according to the Mediation Act and there was some examples when the Equal Treatment Authority mediate between the parties.

The Equal Treatment Authority and the Labour and Employment Control and Supervision Service shall, at request or conduct ex officio investigations to establish whether the obligations of equal treatment have been violated and shall finally make decisions on the basis of the investigations;

The deadline for the process is 30 days.

The decisions and orders of the Equal Treatment Authority shall not be appealed against in the scope of a public administration procedure. According to the general rules applicable to public administration decisions, the court may review the decisions and orders of the Authority. The lawsuit falls within the scope of authority and the exclusive competence of the Metropolitan Court. The Metropolitan Court shall take the necessary actions via a panel comprised of three professional judges, if the party concerned requests so in a statement of claim, or the Authority requests so in a statement of its own relating to the contents of the statement of claim.

The decisions of the Labour and Employment Control and Supervision Service shall be appealed. The court may review the final decisions of the Service. The lawsuit falls within the scope of authority and the competence of the county courts.

In the case of harassment regulated by the Criminal Code, the police and the public prosecution inquires.

4.2. judicial procedures

Describe the judicial procedures in a harassment case. Distinguish between the different types of procedures, such as civil litigation, labour court procedure, administrative and criminal procedure.

Give also attention to the following points of interest:

69 -access to justice (locus standi) -time limits -burden of proof

1. The process of the Labour and Employment Control and Supervision Service and the Equal Treatment Authority

The decisions of the Labour and Employment Control and Supervision Service are reviewed by the administrative section of the county courts.

In the case of the Equal Treatment Authority the lawsuit falls within the scope of authority and the exclusive competence of the administrative section of the Metropolitan Court. The Metropolitan Court shall take the necessary actions via a panel comprised of three professional judges, if the party concerned requests so in a statement of claim, or the Authority requests so in a statement of its own relating to the contents of the statement of claim.

In both cases the deadline for bringing an action is 30 days from getting the final decision of the Authority or Service.

2. Criminal process

In the case of harassment regulated by the Criminal Code, the police and the public prosecution inquires. If the public prosecutor brings an accusation, the criminal court decides the case.

3. Court process

The victim can turn to the labour court and even to the civil court under personal law if the harassment is not related to employment relationship for compensation or other remedies. There is no deadline for this just the term of limitation for claims that is 3 years in labour cases, 5 years in civil cases from the resulted damage. There are no special rules for the lawsuit except the burden of proof. The trade unions have right to step in the lawsuit or to represent the worker.

The Equal Treatment Authority pursuant to the right of actio popularis, may initiate a lawsuit with a view to protecting the rights of persons and groups whose rights have been violated.

The injured party or their representative has to prove the likelihood othat: the injured person or group has suffered disadvantage or the immediate risk of this exists, and the injured person or group possesses a protected characteristic defined in the Equal Treatment Act. If the injured party has sufficiently evidenced the above circumstances, the respondent has to prove that: the circumstances proved likely by the injured party do not exist, or it has observed or in respect to the relevant relationship was not obliged to observe the principle of equal treatment (Section 19.).

9. Remedies and sanctions

Describe the remedies and sanctions that may result from harassment cases, such as : -penal or administrative fine -financial compensation for material and immaterial damage -re-instatement after dismissal related to harassment

70 1 Adninistrative fine

The Equal Treatment Authority shall impose fine that is may vary from HUF fifty thousand (200.- euro) to HUF six million (24.000.- euro) (Section 16.). The Labour and Employment Control and Supervision Service also have a right to impose fine or use other remedies.

2. Penal fine

According the Criminal Code any person who is guilty of harassment punishable by imprisonment for up to one year, community service work, or a fine, if such act does not result in a criminal act of greater gravity.

3. Financial compensation

The victim is entitled for the total compensation of all his/her financial and non-financial damages. There is no limitation and the civil or labour court can decide the case.

4. Re-instatement

If the employer terminated the employee‘s employment relationship because of harassment, it is unlawful, and upon the request of the employee, the employee shall continue to be employed in his original position (reinstatement of the employee could not be exonerated).

6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

71 - Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work - Framework agreement on harassment and violence at work (annex to COM (2007) 686 final)

The EU law had a great impact on the Hungarian legislation and case law however the Hungarian definition of harassment is wider, because it is regulated under more fore features, attributes. But there is no independent definition for sexual harassment in the Hungarian law, the concept of harassment contains the sexual harassment. The Hungarian law does not contain that the harassment can be realized also by words, or without word in a physical manner. The Hungarian law partly meet the requirements of the framework agreement. The deadline for the process of the administrative authorities is 30 days, while a decision should bring. The impartial hearing is realized but the support with reintegration is insufficient.

7.Examples

Describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant.

In our practice we haven‘t meet direct harassment cases so far, but there were some cases which connected to some kind of harassment, one was a disciplinary action.

The Equal Treatment Authority had four harassment cases, one was finished with the change of the working place of the employee.

The second was a case when a company made a public list about the name of those employees who were sick during the last year. The Authority defines that it was harassment related to health condition and prohibited the further continuation of the conduct constituting a violation of law, and ordered that its decision establishing the violation of law be published.

The third case was when a director of a school asked a pupil in front of the other pupils and the teacher that: ―What's up, are you lesbian?‖. The Equal Treatment Authority decided that it wasn't a harassment, because the intent of the director was not to create a hostile environment, just asked a bad question. The director asked forgiveness for lots of time. The harassment is rarely happened by only one statement, it is usually a continuous behaviour, that leads to a hostile environment around the victim.

The fourth case was when the Authority stated that the dispute over the work problems and the employer's instuction for the better work is not qualified as harassment.

72 ICELANDIC REPORT

European Association of Labour Court Judges – 12th Annual Congress

“Harassment and Violence at Work – Access to Judicial Remedies”

Palace of Justice, Vienna, 4th & 5th July 2008

QUESTIONNAIRE

Combating Harassment and Violence at Work

Icelandic Report

Definition and scope

Act on working environment, health and safety in workplaces No. 46/1980 Article 38 (e) After receiving the comments of the Board of the Administration of Occupational Safety and Health, the Minister of Social Affairs shall issue further regulations on which provisions shall be complied with as concerns the organisation, arrangement and execution of jobs, such as: e. on measures against bullying in workplaces. (amended by Act No. 68/2003)

Regulation No. 1000/2004 on measures against harassment at a workplace Article 3. Harassment: Amendable or repetitive unacceptable conduct, i.e. conduct or behaviour that may lead to humiliation, demean, insult, hurtfullness, discrimination or intimidation and cause bad feelings with the person in question. Sexual harassment and other psychological and physical violence applies here. Here, difference of opinion or conflict of interest that may arise between employer/manager and employee or two or more employees does not apply, as such difference of opinion or conflict of interest does not lead to the behaviour described above.

Art. 17 Sexual harassment Employers and directors of institutions and social activities shall take special measures to prevent employees, students and clients from being subjected to sexual harassment in the work place, within institutions, during social activities or within schools.

73 Sexual harassment constitutes sexual behaviour that is unreasonable and/or insulting and continued in spite of a clear indication that this behaviour is unwelcome. Sexual harassment can be physical, oral or symbolic. One event may be considered sexual harassment if it is serious. If a superior is charged with sexual harassment, he/she shall be deemed incompetent to take decisions on the working conditions of the plaintiff during the investigation of the case and a higher superior shall take decisions regarding the plaintiff.

The protection of the law/regulation against harassment applies to all employees. The definition is objective.

The harassment does not have any impact of the human right of freedom of expression according to the definition in icelandic law. In regulation No. 1000/2004 on measures against harassment at a workplace, it is stated that the definition of harassment does not include difference of opinion or conflict of interest between employees and an employer or between two or more employees.

There is a slight distinction made between physical, psychological and sexual harassment. As already mentioned, there is a special protection against sexual harassment in Act No. 96/2000 on Equal Status and Equal Rights of Women and Men. Link to English version of Act No. 96/2000. http://www.jafnretti.is/D10/_Files/Equality%20act.PDF

According to Article 199 of the Icelandic penal code No. 19/1940 sexual harrassment is punishable be imprisonment up to 2 years, see 2. a.

Regulatory framework (national)

Statutory regulation The Icelandic labour system is mainly based on collective agreements. Law stipulates some basic principles concerning the worker's rights and duties, whereas there exists no complete legislation regarding labour and social affairs in Iceland.

Act on working environment, health and safety in workplaces No. 46/1980. Chapter V ―Execution of a Job,‖ Article 38 (e).

Regulation No. 1000/2004 on measures against harassment at a workplace.

Non-statutory regulation The Administration of Occupational Safety and Health has published various brochures/guidlines regarding social and psychological risk factors in the working environment. Among them are brochures concerning harassment in a work place, prevention and reactions. Guidelines concerning harassment can also be found in many undertakings employees policy.

Institutional framework Implementation of general labour legislation is supervised by the Ministry of Social Affairs. Two bodies under the ministry, the Occupational Safety and Health Administration and the Directorate of Labour, deal with individual aspects of implementation.

As already mentioned, Art 38 in the Act on Working Environment, Health and Safety in Workplaces No. 46/1980 states that the Ministry of Social Affairs shall issue further regulations regarding measures against bullying in workplaces. The Ministry has done this by implementing Regulation No. 1000/2004 on measures against harassment at a workplace.

The Administration of Occupational Safety and Health (AOSH) is an independent institution under the Ministry of Social Affairs. It´s role is to prevent accidents and health damage in the workplace. The current legislation, Act on Working Conditions, Health and Safety in the Workplace No. 46/1980, and a number of regulations ratified by the Minister for Social Affairs, cover workplaces on land with a staff of one or more persons. The AOSH is responsible for enforcing the legislation.

The AOSH conducts research on problems related to social risk factors. These problems include mental and physical violence; mobbing and sexual harassment.

Link to the website of AOSH (in english): http://www.vinnueftirlit.is/vinnueftirlit/is/english/

Procedures Extra-judicial and pre-judicial procedures According to article 6 of regulation No. 1000/2004 on measures against harassment at a workplace, employee, who has experienced harassment or has witness of such behaviour on a workplace is obliged to inform his employer about this. According to article 7 the employer shall act as soon as possible if he has received complaint concerning harassment in a workplace.

In article 82 of Act No. 46/1980 on working environment, health and safety in workplaces, it is stated that the Administration of Occupational Safety and Health shall monitor to ensure that employers covered by this Act endeavour to secure a good working environment, health protection and safety levels for their workers when at work. Staff of the Administration of Occupational Safety and Health shall make inspection visits to enterprises to carry out their inspection functions, and shall be granted access to the enterprises‘ workplaces for this purpose. They shall also carry out monitoring and market surveillance in the course of their inspection visits. Staff of the Administration of Occupational Safety and Health shall show credentials concerning their work.

On their inspection visits, staff of the Administration of Occupational Safety and Health shall contact the employer or his representative and the parties involved in work safety in enterprises, cf. Articles 4–6, and they shall provide all the necessary information in connection with the inspection. Furthermore, staff of the Administration of Occupational Safety and Health may request the same information from other workers who are in employment, or who have been in employment at any time during the previous three months.

Staff of the Administration of Occupational Safety and Health shall have access to documents or other materials that are supposed to be available in enterprises according to this Act.

Staff of the Administration of Occupational Safety and Health may seek police assistance in their inspections when necessary.

Staff of the Administration of Occupational Safety and Health shall maintain records of their inspection visits according to this Article in which shall be recorded their comments, prohibitions imposed by the Administration of Occupational Safety and Health and other instructions and notifications regarding working conditions. The employer shall receive a copy of that part of these records that relates to his activities.

After receiving the comments of the Board of the Administration of Occupational Safety and Health, the Minister of Social Affairs shall issue further regulations on the conduct of inspections. Furthermore, the Minister of Social Affairs may decide that specific inspection functions of the Administration of Occupational Safety and Health shall be entrusted to another public institution or to accredited inspection institutes.

Judicial procedures Harassment cases before Icelandic courts can be civil or criminal cases. The Labour Court would normally not deal with such cases. In civil cases the main rule is that the plaintiff has the burden of proof. If evidence of direct and indirect discrimination based on gender is presented, the employer is, according to the Act on the equal status and equal rights of women and men, No. 96/2000, obliged to prove that other reasons than gender sustain the criteria for his/her decision.

Remedies and sanctions

Article 99 of act nr. 46/1980 claims that non-compliance with the Act and regulations that are issued accordingly are punishable by fines, unless heavier punishment is applicable through other legislation. Fines shall be paid to the State Treasury. Court cases based on the Act and regulations that are issued accordingly shall be subject to the Code of Criminal Procedure. A person, who deliberately or through negligence, violates Act 96/2000 on Equal Status and Equal Rights of Women and Men, can be made liable for damages under general principles of tort. In addition to pecuniary loss, the person concerned may be awarded compensation for non-pecuniary loss. Furthermore, violations of the Act. can be punished by fines paid to the State Treasury.

EU context

Council Directive NO. 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions was among those directives that specially were taken into consideration in the Act on the equal status and equal rights of women and men, No. 96/2000. Discrimination of all types is prohibit, direct or indirect, on grounds of gender. As mentioned before, if evidence of direct and indirect discrimination based on gender is presented, the employer is obliged to prove that other reasons than gender sustain the criteria for his/her decision. Council Directive No. 89/391/EEC on the introduction of measures to encourage the safety and health of workers at workplaces, which is referred to in item 8 of Annex XVIII to the Agreement on the European Economic Area, has been introduced with Act No. 68/2003 amending the Act on working environment, health and safety in workplaces No. 46/1980.

76 The Icelandic system presumable meets the general requirements of the Framework agreement on harassment and violence at work.

Examples

Judgement of the Supreme Court of Iceland, June 12. 2008, case no. 555/2007

O was dismissed without notice by K inc. because of certain comments K thought O had published on the Internet about a store manager in one of K´s stores. The Supreme Court of Iceland claimed that K had to proof that O had made the comment in question or at least that he was responsible for it´s publication but K had not made an effort to investigate the cause/occation for the publication. The Supreme Court did not claim that O had made the comments, although his first name was written under the text on a website he had access to. Therefore, K´s statement about this was thought to be unproved. K was judged to pay on notice.

Reykjavík, 23. June 2008

Eggert Óskarsson

IRISH REPORT

RESPONSE TO QUESTIONNAIRE

Combating Harassment and Violence at Work

Definition and scope

Reply Harassment is defined by the Employment Equality Acts 1998 and 2004 as follows: -

(a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

78 Without prejudice to the generality of paragraph (a such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Bullying is defined by a Code of Practice (Code of Practice on Procedures for Addressing Bullying in the workplace): -

Constructive dismissal

Under the Unfair Dismissals Act, 1977 constructive dismissal is defined under section 1(b) as:

―the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.‖

Conduct of the employer is interpreted by the Employment Appeals Tribunal to include inter alia bullying, harassment or sexual harassment.

Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability etc)?

Reply A worker can only have a cause of action in anti-discrimination law if the harassment is on one of the nine grounds proscribed by the Employment Equality Act 1998 –2004.

In the case of bullying the reason is not decisive. However, the Code of Practice is a “soft law” provision and it does not in itself provide legally enforceable remedies. Complaints can be brought before a Rights Commissioner and on appeal to the Labour Court which can make non-binding recommendations.

However, a claim for constructive dismissal on grounds of bullying, harassment or sexual harassment under the Unfair Dismissals Act, 1977 arises regardless of the reason for the harassment.

A cause of action may arise for personal injury in tort where bullying gives rise to work related stress to a degree which amounts to a psychiatric injury. A failure to protect workers from workplace bullying may also amount to a criminal offence under the Safety Health and Welfare at Work Act 2005.

Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors?

Reply The Employment Equality Acts 1998 and 2004 apply to “employees”. That term is broadly defined and includes agency workers and a “person who, under a contract, provides services personally to another”. Thus it includes persons employed on a contract of service and those employed on a contract for services. A similar definition applies under the Industrial Relations Acts 1946 to 2004 under which bullying claims are normally processed. This broad definition of the term “employee” applies for the purpose of these statutes only. Normally a person employed on a contract for services is excluded from the scope of employment rights legislation. A person employed on a contract for services is not covered by the Unfair Dismissals Acts 1997 to 2001.

Under the Unfair Dismissals Acts 1977 to 2001 a person employed through an employment agency is deemed to be the employee of the person for whom the service is being provided viz the end user.

Does the definition contain subjective elements i.e. does it have to be intentional and/or is it based on the perception of the victim)? Or is the definition objective, (i.e. not necessarily intentional and not based on the perception of the victim)?

Reply The definition of harassment and sexual harassment is subjective in nature in that it refers to conduct which has the “purpose or effect etc”. Thus if the conduct has the effect of violating a persons dignity it is harassment properly so called. This suggest a subjective element objectively applied

In the case of bullying the definition refers to conduct “which could reasonably be regarded as undermining the individuals rights to dignity etc…”. This imports an objective dimension to the definition.

Does the law preventing harassment have any impact of the human right of freedom of expression?

Reply No

Is a distinction made between (for example) physical, psychological and sexual harassment?

Reply There is no such distinction

Is the worker also protected against harassment by third parties (clients, pupils)?

80 The obligation imposed on an employer is to provide a workplace free from harassment and bullying. In the case of harassment and sexual harassment an employer is vicariously liable for harassment committed by a client, customer or business associate. It is, however a full defence for the employer to show that he / she took such steps as are reasonably practical to prevent the harassment. The question of harassment of teachers in a school by pupils is not expressly dealt with in equality legislation. However the Labour Court has held that a Board of Management‟s failure to protect female teachers from sexual harassment by male students constituted discrimination against them on the gender ground.

Regulatory framework (national) statutory regulation

Give a brief overview of the relevant legislation concerning harassment and violence at work. If possible, make a distinction between public (administrative) law, private law, and criminal law.

Reply As indicated above the Employment Equality Acts 1998 and 2004 prohibit harassment in employment on any of the discriminatory grounds (sex, marital status, family status, disability, race, sexual orientation, age, religion, membership of the traveller community). The Act provides redress for an individual who has been subjected to harassment in contravention of the Act. Proceedings have to be taken by the aggrieved individual but assistance can be provided by the Equality Authority, which is a State body established to promote equal treatment in employment. However the proceedings are between the individual and the employer and are thus a matter of private law.

Whilst there is no mention of harassment or violence in the Unfair Dismissals Acts 1977 to 2007 the majority of claims for constructive dismissal are on grounds of harassment, violence, bullying and sexual harassment. Constructive dismissal claims are a matter of private law.

Acts of violence perpetrated in the workplace can give rise to criminal liability. Where the conduct amounts to an assault, an assault causing harm or an assault causing serious harm it is an offence under the Non- Fatal Offences Against the Person Act 1997. This is a criminal statute and the offences which it created can be prosecuted by the State before a criminal court of competent jurisdiction. The Act of 1997 also created the offence of “harassment”. Section 10 the Act as provides:-

‖For the purposes of this section a person harasses another where—

( a ) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and

( b ) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.‖

The offence of harassment created by the Act is of general application but it could arise in the workplace.

81 Harassment, bullying and violence in *the workplace can also expose an employer to liability under the Safety Health and Welfare at Work Act 2005. This statute imposes a general duty on an employer to take such measures as are reasonably necessary to protect the health and safety of workers. A failure to do so can amount to a criminal offence. The Health and Safety Authority (which is the State body responsible for enforcement of the obligations imposed by the Act) can prosecute a contravention of the Safety Health and Welfare at Work Act 2005. Further, an employer may be vicariously liable in tort for injury suffered by an employee as a result of harassment or violence at work if the perpetrator commits the unlawful act within the scope of his or her employment.

Include in your description the protection against victimisation (protection of a worker who protests or appeals against harassment).

Reply There are a number of statutory provisions which protect workers from victimisation (or penalisation as it is sometimes described). The Unfair Dismissals Act 1977 –2007 provides that the dismissal of an employee which results wholly or mainly from civil or criminal proceedings, actual, threatened or proposed, in which the employee is a party, complainant or a witness, is automatically unfair. Furthermore, victimisation could ground a claim for constructive dismissal under those Acts. The Employment Equality Act 1998 –2004 prohibits victimisation which is broadly defined as including any form of adverse treatment arising from a complaint of discrimination having been made by an employee to an employer, any proceedings by a complainant, having represented or assisted a complainant, having been a witness in proceedings under the Act, having opposed by lawful means an act which is unlawful under the act or having given notice of an intention to do any of the foregoing.

The Safety Health and Welfare at work contains a similar prohibition of victimisation arising from, inter alia, a complaint made under the Act or seeking to prevent an unsafe practice or conduct.

Victimisation is a matter of private law and proceedings can be taken by the victim before the appropriate tribunal having jurisdiction in the matter. non-statutory regulation

Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes of practice, recommendations etcetera. Explain the content of these instruments Are (i) the Code of Practice on Sexual Harassment and Harassment at Work, and (ii) the Code of Practice under the Industrial Relations Acts still in force as well as the Code of Practice on the Prevention of Workplace Bullying?

Reply As indicated above there is a Code of Practice on Bullying in the Workplace. There is also separate Codes of Practice on Sexual Harassment and Harassment at Work These Codes of Practice defines the terms and provides the procedural steps to be followed in investigating complaints of bullying and Harassment. The codes provides for an informal stage in which the employer should seek to have the issue resolved between the complainant and the alleged perpetrator. If this is not successful the code provides for an investigation by either a senior member of management or by an agreed external investigator. It then provides for an appeal by either the compliant or a person found to have perpetrated bullying to a Rights Commissioner and a further appeal to the Labour Court.

82 The codes of practice is intended to provide guidance to employers and trade unions** on how issues relating to bullying in the workplace should be addressed. As a matter of general good practice its terms are incorporated in many collective agreements in the form of a bullying policy.

Equally, as a matter of good practice, many employments incorporate a policy on harassment, including sexual harassment, in either their collective agreements or employee handbooks. Where an employer does not have a policy designed to prevent harassment in place it is more likely to be held vicariously liable for any act of harassment which occurs (the only defence available to an employer is that it did all that was reasonable to prevent the harassment from occurring).

Institutional framework

Reply The Equality Authority is a statutory body established for the purpose of promoting adherence to the principle of equal treatment in employment. Its remit includes a responsibility for providing guidance to employers and trade unions on procedures to prevent harassment on any of the discriminatory grounds. Trade Union and Employer bodies have also taken initiatives to highlight the unacceptability of any form of violence or harassment at work. The Labour Relations Commission (a body established, inter alia, to promote good practice in employment) has also taken a number of initiatives to promote awareness in this general field.

4. Procedures

4.1. extra-judicial and pre-judicial procedures

There are no formal procedures specifically designed to deal with bullying, harassment or violence at work. There are however processes which are designed to deal with the generality of disputes in either equality law or in industrial relations which can be utilised to deal with these matters. There are a number of instances where employers or employer associations and trade unions have concluded agreements which set out procedures for dealing with bullying or harassment.

In the case of sexual harassment or harassment on any of the proscribed grounds under the Employment Equality Acts 1998 and 2004 a mediation service is provided by the Equality Tribunal (the tribunal having first instance jurisdiction in equality matters. Claims of harassment which come within the ambit of Employment Equality law can be processed through this service. The service deals

83 exclusively with individual issues. It is voluntary and if it fails to resolve the matter the case can be investigated through the normal adjudicative system.

The Labour Relations Commission provides a conciliation service to deal with all forms of industrial relations disputes which are not grounded in issues of legal right. This service is focused mainly on collective issues and deals principally with employments in which collective bargaining takes place. It can and does deal with issues concerning the application of procedures for dealing with harassment or violence.

Disputes concerning bullying or violence (which does not come within the scope of the employment rights legislation) may be referred to a Rights Commissioners or the Labour Court under the Industrial Relations Acts and a non-binding recommendation may be issued.

4.2. judicial procedures

Describe the judicial procedures in a harassment case. Distinguish between the different types of procedures, such as civil litigation, labour court procedure, administrative and criminal procedure.

Give also attention to the following points of interest: -access to justice (locus standi) -time limits -burden of proof

Reply A claim alleging harassment on one of the grounds proscribed by the Employment Equality Acts 1998 and 2004 may be presented to the Equality Tribunal. Except where the Complainant is under a legal disability (in which case the Equality Authority has locus standi) the claim must be presented by the Complainant. There is a time limit of six months from the date on which the act alleged to constitute harassment occurred. This may be extended by a further six months where reasonable cause is shown.

A rule of evidence in line with the Burden of Proof Directive applies in the investigation of these cases. Thus, the Complainant must prove (a) that the act(s) alleged to constitute harassment occurred, (b) that he or she is in a category protected by the Act and (c) that there is some prima facie connection between (a) and (b). It is then for the Respondent to prove that (a) the harassment is not connected to the protected characteristic of the person. The Respondent may also deny that it is vicariously liable by reason of having taken appropriate measure to prevent the harassment.

A full appeal lies from the decision of the Equality Tribunal to the Labour Court. There is a further appeal on a point of law to the High Court.

A claim for constructive dismissal alleging harassment may be presented to the Employment Appeals Tribunal within six months of the employee‟s resignation from the employment because of the alleged acts. This time limit may be extended by up to a further six months

84 where “exceptional circumstances” prevented the presentation of the claim within the initial six-month period. The burden of proof in a constructive dismissal case is on the employee. An appeal from the decision of the Employment Tribunal lies to the Circuit Court. Unusually, a further appeal lies from the Circuit Court to the High Court.

The standard of proof is the normal civil standard – the balance of probabilities.

Acts of harassment or violence may be prosecuted as criminal offences or a civil action in tort may be instituted.

5. Remedies and sanctions

Describe the remedies and sanctions that may result from harassment cases, such as: -penal or administrative fine -financial compensation for material and immaterial damage -re-instatement after dismissal related to harassment

Reply Redress for acts of harassment are available under the Employment Equality Acts 1998 and 2004. Redress **is also available under the Unfair Dismissals Act 1977 –2007 where the harassment results in dismissal (including constructive dismissal). The redress can include an order for reinstatement, reengagement or an order for compensation in an amount not exceeding twice the annual remuneration of the complainant. If the harassment is on the gender ground a claim can be initiated before the Circuit Court (rather than the Equality Tribunal or the Labour Court). In such an event the Circuit Court has unlimited monetary jurisdiction. Where a claim is taken under the Employment Equality Acts 1998 and 2004, the Equality Tribunal, or the Labour Court on appeal, may make any further order it considers necessary directing an employer to take a specified course of action in order to redress the effects of the harassment.

6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

- Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin - Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation - Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions - Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work -Framework agreement on harassment and violence at work (annex to COM (2007) 686 final)

Reply Directives 2000/43/EC, 2000/78/EC and the amendments to Directive 76/207/EC were implemented in Irish law by the Equality Act 2004. However the Employment Equality Act 1998 had already proscribed discrimination, including harassment, on any of the protected grounds under these Directives. The general requirements of Directive 89/391/EC were met by the provisions of the Safety Health and Welfare at Work Act 1989. This Act as since been repealed and replaced by the Safety Health and Welfare at Work Act 2005, which provides stronger protection for the safety and health of workers. As indicated earlier contraventions of this legislation constitute a criminal offence which are prosecuted in the criminal courts. In so

85 far as this legislation imposes certain statutory duties on employers in respect of safety health and welfare at work any breach of this duty can be relied upon to ground an action in tort in the ordinary courts.

In cases of violence or harassment which does not come within the ambit of the statutory provisions, a claim can be processed under the Industrial Relations Acts 1946 – 2004, as a trade dispute. A Rights Commissioner or the Labour Court can investigate the dispute. Either tribunal can issue a non-binding recommendation, which can provide for compensation. These recommendations are accepted in circa 80% of cases.

The Framework agreement on harassment and violence in the workplace has not been formally implemented in Ireland. It is currently the subject of discussions between the social partners.

In general the effect of EU legislation has been quite positive in the development of domestic employment protection law. The case law on employment protection generally has drawn heavily on the jurisprudence of the ECJ. This is also true in respect to harassment, particularly in cases of sexual or racial harassment.

Does your system meet the requirements of the Framework agreement on harassment and violence at work? Give particular attention to the procedure mentioned in paragraph 4: -investigation without undue delay; -impartial hearing; -support with reintegration; - Reply There is an infrastructure available to deal with these cases expeditiously and impartially through the various employment tribunals (Rights Commissioner, Employment Appeals Tribunal and the Labour Court). There is, moreover, a Code of Practice on bullying and harassment in the workplace. This Code of Practice deals with the matters referred to at Clause 4 of the Framework Agreement. The Code of Practice is not legally binding although its provisions must be taken into account by the various employment tribunals in considering any case to which its terms are relevant.

8.Examples

Describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant.

Example 1. - Two Teachers v A Boys Secondary School.

Facts This case involved complaints by two women teachers employed at a boys secondary school. The Complainants alleged that they were subjected to sexual harassment by pupils at the school. The first named Complainant was a teacher of Irish and the second named complainant was a teacher of religion.

86 the corridors. She reported this to the Principal using the standard form for complaints involving serious breaches of discipline (“the blue form”). The School Principal claimed that the complaint recorded on the blue form had no sexual connotations and related only to an incident which occurred in September 2004.

On 18th December 2004 there was a further incident. On that occasion a page containing numerous sexually offensive and explicit references was included in a Religion test answer paper given to the second named Complainant. This incident was reported using the blue form. An investigation ensued but the Principal concluded that no disciplinary action should be taken since the offending student could not be positively identified. There were also incidents in which sexually explicate graffiti involving both Complainants appeared on the school wall. There were two further incidents in which a sticker was attached to the first named Complainant‟s back on which an expression of an explicit sexual nature had been written. This was also reported on the blue form. The matter was investigated and a sanction imposed on the student responsible. This consisted of a period of suspension, part of which ran concurrently with the schools mid term break.

There were further incidents of graffiti appearing around the school, offensive comments being written on blackboards and notes of an explicit and offensive nature being left on the Complainants‟ desks. The Complainants wrote to the Secretary of the Board of management of the school complaining at what they regarded as the Principal‟s failure to deal adequately with the problem. The Complainant also contacted their trade Union, which raised the matter with the school‟s board of management.

There were further incidents of harassment and the Complainant brought proceeding against the school pursuant to the Employment Equality Act 1998.

Position of the parties The Complainant contended that the school had a duty to provide them with a workplace free of sexual harassment. The contended that the Respondent had failed to fulfil that duty by failing to take any or any appropriate action to prevent the harassment by students.

The respondent contend that as a matter of law it cannot be vicariously liable for the alleged wrongful acts of the students. They further contend that they acted appropriately in response to any complaints made by the Complainants and are not liable for any harassment suffered by them.

Held.

The Court first adopted the definition of sexual harassment contained in the Code of Practice annexed to Commission Recommendation 92/131/EEC of 27th November 1991 on the protection of the dignity of women and men at work. The Court held that the conduct complained of came within that definition.

The Court went on to hold that every employer has a duty to provide its employees with a place of work free of sexual harassment. The Court held on the facts of the case that the Respondent had failed to take any effective steps to stop the harassment of the teachers after it became aware of what was happening. The Court held that the Respondent‟s failure to exercise effective control over what was happening meant that it had failed in its duty to provide the Complainants with a place of work free from sexual harassment. The Respondent was thus directly liable for the harassment suffered by the Respondent. They were each awarded compensation in the amount of €40,000 which contained a punitive element.

Example 2. – A Shop Assistant v a Sports Store

Facts The Complainant, who was aged 18 at the material time, was employed by the Respondent as a sales assistant in its store in a major shopping centre in Dublin. It was her first job. She had suffered from drug addiction and was then drug free. A group involved in rehabilitation of drug abusers had assisted her in getting the job. The Respondent had known her history in that regard.

87 At the time of the incident giving rise to the case the Complainant had been employed for 13 weeks.

The Complainant told the Court that she had been subjected to harassment in the form of unwanted attention by a male store manager. In or about June 2005 the Complainant was working alone in the stores room. She said that she was approached by the store manager and subjected to a sexual assault. In order to get away from the manager the Complainant ran to the back of the store and fell over some loose boxes, injuring her leg and hand.

The Complainant reported the incident to the assistant manager. The assistant manager told the Complainant to go home and await further contact from her. The assistant manager contacted the personnel department of the Respondent in the UK. She was advised that the Complainant should be placed on paid leave pending an investigation. The Complainant was advised accordingly.

The personnel manager informed the store manager of the complaint and advised him that an investigation would be initiated. The personnel manager referred the matter to the security department. A senior investigator, whose normal role was to investigate incidents of fraud and theft, was assigned to the investigation.

The investigator travelled to Dublin from the UK and met with the Complainant by appointment at a café in the shopping centre in which the store was located. The Complainant wished to be accompanied by her father. She was told that she would have to attend alone. The investigator interviewed the Complainant and a statement was taken from her. The assistant manager was not interviewed.

The investigator then interviewed the manager. The evidence disclosed that the manager denied that the incident complained of occurred or that the Complainant had been harassed. He told the investigator that he believed the Complainant was involved in pilfering from the store and he had confronted her with that allegation. He suggested that the allegation against him was invented in order to deflect from the Complainant‟s own misconduct.

The Complainant had been told to go home after her interview. Some hours later she received a phone call from he investigator asking her to return to the store and meet with him. The Complainant met with the investigator who accused her of theft of goods from the store. The Complainant gave evidence that the investigator told her that he had sufficient evidence to have her charged with stealing and that he intended to call the police and have her arrested. He said that if she signed a prepared statement admitting to theft she would be dismissed but that no further action would be taken. The Complainant told the Court that she was frightened and apprehensive of any involvement by he police. She signed the prepared statement and left the store. The following day, accompanied by her parents, she consulted a solicitor. The solicitor initiated proceedings for harassment and discriminatory dismissal.

Held.

At the hearing before the Court neither the manager nor the assistant manager gave evidence. Both had since ceased to be employed by the Respondent. The investigator and the personnel manager gave evidence on behalf of the Respondent. The Complainant gave evidence of the events leading to her dismissal.

The Court was satisfied that there was no evidence whatsoever to suggest that the Complainant was guilt of theft. The manager made no complaint to that effect until after the Complainant had reported the harassment to which she had been subjected. The Court noted that the investigation of the Complainant‟s complaint had been assigned to a man who had no training or expertise in the investigation of sexual harassment. The manner of he investigation was wholly inappropriate and in itself amounted to further harassment and victimisation of the Complainant.

The Court was satisfied that the Complainant was harassed because of her sex and that a man would not have been subjected to the same treatment. Her complaints were upheld.

88 The Court held that the discriminatory treatment to which the Complainant subjected was aggravated by the subsequent conduct of the investigation and the manner of her dismissal. The Complainant did not seek reinstatement.

The Court awarded the Complainant compensation in the amount of €31, 618, which was the extent of its monetary jurisdiction in the case.

K.T. O’Mahony The Employment Appeals Tribunal Ireland

Kevin Duffy The Labour Court Ireland

26th May 2008.

89 ITALIAN REPORT

EUROPEAN ASSOCIATION OF LABOUR COURT JUDGES

Combating Harassment and Violence at Work (Vienna, 4th & 5th July 2008)

ITALIAN NATIONAL REPORT

(by Giovanni Mammone)

1. Definition and scope

Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability etc)?

- In the Italian legal system protection from harassment is inserted in protection against discrimination, and it is applied regardless of the reason for the harassment. Protection against discrimination at work for sex, race, language, religion or political views, moreover, is given by Italian workers‟ statute (art. 15).

Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors? Does the definition contain subjective elements (i.e. does it have to be intentional and/or is it based on the perception of the victim)? Or is the definition objective, (i.e. not necessarily intentional and not based on the perception of the victim)?

- Protection against discrimination applies to all categories of workers. All law definitions of harassment are objective.

Does the law preventing harassment have any impact of the human right of freedom of expression?

- Not

90 Is a distinction made between (for example) physical, psychological and sexual harassment?

- Yes. After implementation of EC directive 2002/73, in the Italian labour law there is a distinction between physical, psychological and sexual harassment (see legislative act n. 145 of 30 May 2005).

Is the worker also protected against harassment by third parties (clients, pupils)?

- Not directly. The employer is obliged to protect men and women at work against all risks.

2. Regulatory framework (national)

2.1 statutory regulation

Give a brief overview of the relevant legislation concerning harassment and violence at work. If possible, make a distinction between public (administrative) law, private law, and criminal law.

- All relevant legislation concerning harassment and violence at work is contained within a legislative act: the law n. 125 of 10 April 1991 on the equal treatment between men and women at work. This law has been amended in 2005 after that the directive 2002/ 73/EC was implemented in the Italian legal system (see legislative act n. 145 of 30 May 2005).

Today, according to the Italian legal system discrimination is: a) every behaviour that discriminates men and women at work and has a detrimental effect on them (direct discrimination); b) every seeming not relevant for discrimination that puts workers (men and women) in a position to be at a disadvantage against workers of a different sex (indirect discrimination); c) worries or not wished behaviours made for reasons related to sex, directed to violation of worker‟s (man or woman) dignity or to intimidation of him/her; d) sexual worries or not wished physical or spoken behaviours related to sex, directed to violation of worker‟s (man or woman) dignity or to intimidation of him/her.

More usual definition of harassment in the Italian judicial practice is “mobbing”, that is a legal term (I think coming from sociology) including, above all, the behaviours of the employer or of the colleagues who disturb or bother the employee with worries at work. The victim, if damaged (for a lost chance in a job, for a health damage) has the right to a compensation.

Some collective agreements introduce joint committees (with employee-employer representatives) to improve equal treatment and oppose to harassment.

In criminal law many rules of the criminal code oppose threats and violence against persons; aggravating circumstances are imposed for crimes committed at work. Law n. 903 of 9 December 1977 imposes criminal penalties for every discrimination behaviour.

Include in your description the protection against victimisation (protection of a worker who protests or appeals against harassment).

- There is not a particular law for this protection.

2.2 non-statutory regulation

Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes of practice, recommendations etcetera. Explain the content of these instruments.

- Committees introduced by collective agreements usually take practical initiatives to contrast all harassment behaviours at work or propose codes of good practice.

3. Institutional framework

- A public national Committee for equality men-women at work exists in the Labour Ministry. Its members are the Minister, representatives of unions and feminine associations, experts in labour law, economics and sociology. Its task is to promote equality and remove sex discrimination at work. A technical panel of experts supports the committee for investigations and inquiries on discrimination cases.

Labour Inspectorate can make investigations for discrimination cases. It reports all criminal violations to the public prosecutor office and collaborates with the local counsellor of equality.

National and local (region and province) counsellors of equality engage “positive actions”(i.e. initiatives) for increasing equality and avoiding discriminations.

4. Procedures

4.1. extra-judicial and pre-judicial procedures

- A pre-judicial obligatory procedure is needed before every labour dispute.

Counsellor of equality (see n. 3) before starting proceedings can ask the employer to plan in a short time (maximum 120 days) the end of discrimination (or harassment).

4.2. judicial procedures

Describe the judicial procedures in a harassment case. Distinguish between the different types of procedures, such as civil litigation, labour court procedure, administrative and criminal procedure.

Give also attention to the following points of interest: -access to justice (locus standi)

92 -time limits -burden of proof

a) ordinary judicial procedure: - the worker (man or woman) claims to labour court (or administrative tribunal for some categories of public servants) with assistance of a lawyer or counsellor of equality (see n. 3); counsellor of equality can take part in proceedings to help the worker; - a hearing is fixed not later than 60 days; - the worker must provide proof of discrimination; when a discrimination is presumed, the employer has the burden of not discrimination proof;

b) preventive procedure: - a hearing is fixed not later than 48 hours; - a judge orders the employer (or other, if responsible of the discrimination) to suspend his behaviour; - the parts of proceedings can make an objection to the judicial order not later than 15 days.

All decisions of the court (awards, decrees, orders) are soon enforceable.

5. Remedies and sanctions

Describe the remedies and sanctions that may result from harassment cases, such as : -penal or administrative fine -financial compensation for material and immaterial damage -re-instatement after dismissal related to harassment

a) penal fine from € 103,29 to € 516,45 (law n. 903 of 9 December 1977, art. 16); b) financial compensation for material and immaterial damage (law n. 125 of 10 April 1991, art. 4);in the limit of damage evidence; c) re-instatement after dismissal related to harassment (law n. 125 of 10 April 1991 n. 125, art. 4); in Italian labour law a dismissal related to discrimination is void and it is always followed by re-instatement (law n. 300 of 20 May 1970, workers‟ statute, art. 15 and 18);

6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

- All European directives were implemented in the Italian legal system: - Directive 2000/43/EC by law n. 215 of 9 July 2003;

93 - Directive 2000/78/EC by law n. 216 of 9 July 2003; - Directive 2002/73/EC amending Council Directive 76/207/EEC by law n. 145 of 30 May 2005; - Directive 89/391/EEC by law n. 626 of 19 September 1994, not long ago substituted by law n. 81 of 9 April 2008;

Except for directive 89/391, whose implementation increased security at work, all Italian administrative system of the fight against discrimination (as shortly described) is based on two legislative acts (law n. 903 of 9 December 1977 and n. 125 of 10 April 1991), that were each time amended by following laws.

9.Examples

Describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant.

More than a judicial case, I prefer to describe the story reported in a successful Italian movie of 2003: Mi piace lavorare - Mobbing (I like to work – Mobbing), directed by Francesca Comencini and interpreted by Nicoletta Braschi. A woman (that we name Anne) is employed as a clerk in the marketing office of a factory. During her job she discovers some not regular affairs of the head clerk and asks him to rectify all mistakes. This one thinks that she wants to give evidence of his misconduct and begins to harass her with some worries. At first she is moved from her desktop, after she is employed on a job without any task and spends her time sitting at her writing-desk with no assignments. At the end she is placed in a passage-way of the offices, employed on a photocopier machine out of order. Anne asks the union stewards for help and they ask the management of the factory for an explanation about her situation. The staff manager doesn‟t have any explanation and says that she will be replaced as soon as possible. Weeks go by. Nothing changes and she contacts a lawyer. Anne falls in a depression and stays far from her job for some time. She comes back for a brief period and at the end she resigns. The movie ends at the moment in which Anne goes into the labour court building with her lawyer.

This short summary of the story needs a comment. Anne chooses the judicial procedure more than the administrative. Administrative remedies are a very complex system that today is not successful in practice. More effective are the judicial remedies, first of all the individual claim to labour courts for a judicial injunction to suspend harassment at work (or “mobbing”, see n. 2.1) and to obtain a damage compensation.

94 LITHUANIAN REPORT

RESPONSE TO QUESTIONNAIRE

Combating Harassment and Violence at Work

1. Definition and scope

How are the concepts of harassment, violence, bullying, etcetera, in relation to work, defined in legal documents (statutes, collective agreements, codes of practice, recommendations) in your country?  Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability etc)?

In accordance with the Lithuanian law equal treatment means implementation of the human rights, which are laid down in international documents on human and citizens‘ rights and in the laws of the Republic of Lithuania, regardless of the age, sexual orientation, disability, racial or ethnic origin, religion, beliefs and other grounds established in the international agreements or laws of the Republic of Lithuania.

 Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors?

The provisions of the Lithuanian law on equal treatment shall apply to all spheres of social relations except of family and private life.

 Does the definition contain subjective elements i. e. does it have to be intentional and/or is it based on the perception of the victim)? Or is the definition objective, (i.e. not necessarily intentional and not based on the perception of the victim)?

The definition of harassment contains subjective elements as harassment is deemed to be undesirable conduct (discrimination), when on the basis of age, sexual orientation, disability, racial or ethnic origin, religion or beliefs one strives to violate or violates the dignity of a person and strives to create or creates an intimidating, hostile and degrading or offensive environment.

 Does the law preventing harassment have any impact of the human right of freedom of expression?

95 The law provides protection of freedom of expression by prohibition to discriminate on the grounds of religion and beliefs.

Is a distinction made between (for example) physical, psychological and sexual harassment? There is no special definition for physical and psychological harassment while the Lithuanian law on equal opportunities for women and men sexual harassment stipulates as any form of unwanted and insulting verbal, written or physical conduct of a sexual nature with a person with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, humiliating or offensive environment.

Is the worker also protected against harassment by third parties (clients, pupils)? There are no direct provisions in Lithuanian law

2. Regulatory framework (national)

3. statutory regulation

Constitution of the Republic of Lithuania Article 29: All persons shall be equal before the law, the court, and other State institutions and officials. The rights of the human being may not be restricted, nor may he be granted any privileges on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views.

Law on equal treatment Article 2: Harassment shall be deemed to be undesirable conduct (discrimination), when on the basis of age, sexual orientation, disability, racial or ethnic origin, religion or beliefs one strives to violate or violates the dignity of a person and strives to create or creates an intimidating, hostile and degrading or offensive environment.

Article 5: Duty of Employer to Implement Equal Treatment at Work, in Public Service When implementing equal treatment the employer, regardless of the person‘s age, sexual orientation, disability, racial or ethnic origin, religion or beliefs, must: 1) apply equal recruitment criteria and employment conditions when employing or recruiting to the public service except in the cases set forth in sub-paragraphs 1,2,3,4 and 5 of paragraph 3 of Article 2 of this Law; 2) provide equal working and public service conditions, opportunities to improve qualifications, seek more advanced vocational training, be retrained, acquire practical work experience and grant equal benefits; 3) use equal criteria in evaluating work and the performance of public officers; 4) apply evaluation criteria of dismissal from work and from public service; 5) provide equal pay for equal work or work of equal value;

96 6) take measures to prevent harassment of an employee or a public servant; 7) take measures to prevent sexual harassment of an employee or public servant; 8) take measures to prevent persecution of or an employee or public servant, who filed a complaint on discrimination to be protect him from hostile behaviour and negative consequences; 9) take appropriate measures to provide conditions for the disabled to obtain work, to work, to a career or to study, provided that the duties of the employer would not be disproportionately burdened as a result.

Law on equal opportunities for women and men Article 2: Sexual harassment shall mean any form of unwanted and insulting verbal, written or physical conduct of a sexual nature with a person with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, humiliating or offensive environment. Harassment shall mean an unwanted conduct related to the sex of a person that occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, humiliating or offensive environment.

Article 5. The Employer's Duty to Implement Equal Rights for Women and Men at Workplace When implementing equal rights for women and men at workplace, the employer must: 1) apply uniform selection criteria when recruiting or promoting, except for the case specified in subparagraph 5 of paragraph 2 of Article 4; 2) provide equal working conditions and opportunities to improve qualification, re-qualify, acquire practical work experience, and provide equal benefits; 3) provide equal pay for the same work or for the work of equivalent value, including all the additional remuneration paid by the employer to employees for the performed work; 4) take appropriate measures to prevent sexual harassment or harassment of the employees; 5) take measures to ensure that an employee, a representative of an employee or an employee who is testifying or providing explanations would be protected from hostile behaviour, negative consequences and any other type of persecution as a reaction to the complaint or another legal procedure concerning discrimination.

Labour Code

Articles 2 and 96: labour relations are based on equality principle, regardless of sex, sexual orientation, racial or ethnic origin, language, nationality and social status, religion, marital or family status, age, beliefs, membership in political parties or ungovernmental organizations, factors, unrelated with employees‘ objective characteristics.

Criminal Code

Sexual harassment is criminalized in Article 152 as vulgar or likewise actions, offers or hints seeking sexual interaction or self-satisfaction in regard with a service- or otherwise dependable person.

Discrimination on the grounds of nationality, race, sex, origin, religion or other group involvement is criminalized in Article 169.

Administrative Code

Article 41(6): Violation of equal opportunities of women and men – fines are imposed on officers and employers.

4. non-statutory regulation

Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes of practice, recommendations et cetera. Explain the content of these instruments.

As non-statutory instruments are not wide spread it is not possible to give any comments on this regulation.

3. Institutional framework

Supervising the implementation of equal opportunities, the Equal Opportunities Ombudsperson may investigate complaints relating to direct and indirect discrimination, sexual and another harassment. Rulings are reccomendatory. May apply administrative penalties.

Courts may apply civil, administrative and criminal liability.

4. Procedures

4.1. extra-judicial and pre-judicial procedures

A person, who thinks that the discriminatory actions have been directed against him, or that he has become a subject of harassment, has the right to appeal to the Equal Opportunities Ombudsperson. Article 12. Competence of the Equal Opportunities Ombudsperson who investigates the

98 complaints related to direct and indirect discrimination, harassment and sexual harassment and provides objective and unbiased consultations related therewith. In the course of investigation or upon completion of the investigation, the Equal Opportunities Ombudsperson may take a decision: 1) to refer the investigation material to a pre-trial investigation institution or the prosecutor if features of a criminal act have been established; 2) to address an appropriate person or institution with a recommendation to discontinue the actions violating equal rights and to amend or repeal a legal act related thereto; 3) to hear cases of administrative offences and impose administrative sanctions; 4) to dismiss the complaint if the violations indicated in it have not been corroborated; 5) to terminate the investigation if the complainant withdraws his complaint or when there is a lack of objective evidence about the committed violation or when the complainant and offender conciliate or when acts that violate equal rights cease to be performed or when a legal act that violates equal rights is amended or repealed; 6) to admonish for committing a violation; 7) to suspend the investigation if the person, whose complaint or actions, in reference to which a complaint has been made, are under investigation, is ill or away; 8) temporarily, until taking the final decision, to ban an advertisement if there is sufficient evidence that the displayed or intended to be displayed advertisement can be recognised as inciting ethnic, racial, religious hatred or hatred on the basis of sex, sexual orientation, disability, beliefs or age and would do serious harm to the public interests, would humiliate human honour and dignity and would pose threat to the principles of public morals; 9) to impose an obligation on operators of advertising activity to terminate an unauthorised advertisement and to establish the terms and conditions for the discharge of this obligation.

4.2. judicial procedures

Describe the judicial procedures in a harassment case. Distinguish between the different types of procedures, such as civil litigation, labour court procedure, administrative and criminal procedure.

Give also attention to the following points of interest: -access to justice (locus standi) -time limits -burden of proof No pre-judicial procedures acquired, no restrictions on access to justice When investigating the complaints or applications of natural persons, as well as the disputes of persons concerning discrimination on grounds of sex, in courts or other competent institutions, it shall be presumed that the fact of direct or indirect discrimination occurred. A person or institution against which a complaint was filed must prove that the principle of equal rights has not been violated. Time limits – 3 years,

5. Remedies and sanctions

Describe the remedies and sanctions that may result from harassment cases, such as : -penal or administrative fine -financial compensation for material and immaterial damage -re-instatement after dismissal related to harassment

99 Penal, administrative fines, freedom restriction, arrest, compensation of pecuniary and non-pecuniary damage, re-instatement.

6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

Lithuanian law is harmonized with European Union law by implementing particular provision into national legal acts.

Directive 2002/73/EC of 23 September 2002 is implemented in Law on equal opportunities for women and men.

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation are implemented in Law on equal treatment.

The framework agreement still needs to be implemented in Lithuanian legal system, since there is no regulation of procedure on enterprises level.

10.Examples

Describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant. The case was dealt in 2003. A man was not allowed to take a paternity leave and warned about firing. The Supreme Court held it as discrimination on grounds of sex and ruled that the claimant should be re-instated to his previous position and his employer was obliged to provide employee with paternity leave.

100 LUXEMBOURG REPORT

EALCJ 2008 TECHNICAL SEMINAR

― Combating Harassment and Violence at Work ―

Report from Luxembourg

1. Definition and scope :

Our Labour Law Code ( Code du Travail ) deals with sexual harassment in its articles L. 245-1 to L. 245-8 and, more generally, with the equality of treatment on the workplace by respect of the principle of non-discrimination on the grounds of religion or conviction, disability, age, sexual orientation, race or membership of an ethnic group, in its articles L. 251-1 to L. 254-1, introduced by the Act of November 28th 2006 on equality of treatment on the workplace, slightly modified on points of detail by the law of May 13th 2008 on the equality of treatment between men and women.

Until the newly adopted law of November 28th 2006 on equality of treatment, such as modified, transposing the Directives 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, coming into legal force on January 1st 2007, the notion on moral harassment ( ― mobbing ― or bullying ) was not defined in Luxemburgish Labour law. Nevertheless, the Labour Courts developed a jurisdiction, mainly based on the decisions of the French Cour de Cassation, regarding moral harassment in which the burden of proof of an act of moral harassment is on the victim of such a behavior who has to prove that, according to the general principle of article 1134 of the Civil Code, the author of these acts of moral harassment, i.e. the employer, has not fulfilled his contractual obligations of the work contract and who engages his contractual responsibility by this faulty behaviour ( cf. Court of Appeal: 01.04.2004 N° 27759 LEDIG c/ CATRA S. à r. l. ; 29.03.2007 N° 30765 JONAS c/ HORSE-LUX; 22.06.2007 N° 30994 LUXAIR c/ SCHNEIDER ).

Beside the sexual and moral harassment mentioned above, article L. 251-1, § 3, deals with the harassment based on a discrimination linked to an undesired behaviour in the field of religion or conviction, disability, age, sexual orientation, race or membership of an ethnic group that causes

101 a violation of the personal dignity and creates an intimidating, hostile, degrading or humiliating environment.

As the sexual harassment is concerned, the protection from harassment applies to all employees as defined in article L. 121-1 of the Labour Law Code, i.e. all persons linked to an employee by a work contract including agency workers, economically dependent workers, and to trainees, pupils or students occupied during school holidays. The definition of sexual harassment presumes the intentional element of the behaviour of sexual harassment when one of the three following conditions is fulfilled: - the behaviour is abusive and offensive for the person being the victim – the fact that a person refuses or accepts such a behavior from the employer, an employee, a client or a supplier is used explicitly or implicitly as the basis of a decision affecting the rights of that person in the fields of professional training, employment, promotion, salary or of all other decision concerning the employment – such a behaviour creates a climate of intimidation, hostility or humiliation towards the victim. Since the adoption of the above mentioned modified law of November 28th 2006 the intentional element of a moral harassment is presumed when: - a person is treated less favourable than another in a comparable situation on the basis of one of the motives related to religion or conviction, disability, age, sexual orientation, race or membership, supposed or real la, of an ethnic group or - an indirect discrimination is produced when a disposition, a criterion or an apparently neutral practice is likely to cause a particular disadvantage for persons of a religion or a conviction, of a certain handicap, of a certain age, sexual orientation, race or membership, supposed or real, of an ethnic group with respect to another person.

The behaviour of sexual harassment can be physical or verbal and non-verbal. The employer has the duty to manage that any sexual harassment of which he is aware of has to cease immediately, whether the behaviour of sexual harassment does emanate from the employer himself or from another hierarchical superior, from a work colleague or from an exterior person having professional relations with the employer such as clients or suppliers.

The same principles apply to moral harassment.

2. Regulatory framework ( national ):

2.1. statutory regulation:

As mentioned above our legislation concerning harassment and violence at work is concerned by articles L. 245-1 to L. 245-8 of the Labour Law Code ( sexual harassment, introduced by the law of May 26th 2000 concerning the protection against sexual harassment on the work place ) and by the Act of November 28th 2006 on equality of treatment on the workplace ( articles L. 251-1 to L. 254-1 of the Labour Law Code ),

102 such as modified, concerning the equality of treatment on the workplace by respect of the principle of non-discrimination on the grounds of religion or conviction, disability, age, sexual orientation, race or membership of an ethnic group. In a wider perspective, article L. 251-1, § 3, as related above, refers to the harassment based on a discrimination linked to an undesired behaviour in the field of religion or conviction, disability, age, sexual orientation, race or membership of an ethnic group that causes a violation of the personal dignity and creates an intimidating, hostile, degrading or humiliating environment.

The general principles of the equality of treatment on the workplace by respect of the principle of non-discrimination on the grounds of religion or conviction, disability, age, sexual orientation, race or membership of an ethnic group have been also introduced in public law by the modified Act of November 29th 2006 modifying the law of April 16th 1979 fixing the general statute of civil servants.

As regards criminal law, articles 454 and 455 of the Criminal Code ( ― Code pénal ― ) refer to any forms of discrimination based on origin, colour of skin, gender, sexual orientation, family situation, age, health, disability, morals, political or philosophical opinions, trade union activities, membership, supposed or real, of an ethnic group, nation, race or a determined religion. Any discrimination of such a kind is prohibited when this act of discrimination, in the field of work relations, subordinates the access to work or the work conditions to one of the elements mentioned before and is punished by an imprisonment of eight days to two years and a fine between 251 € and 25.000 € or one of these punishments.

Article L. 245-5 (1) of the Labour Law Code provides that a worker cannot be retaliated for reasons of his protests or refusal opposed to an act of sexual harassment emanating from his employer, or from another hierarchical superior, from a work colleague or from an exterior person having professional relations with the employer such as clients or suppliers and article L. 245-5 (2) stipulates that no worker can be retaliated for having witnessed those acts of sexual harassment or for having related them, whereas any disposition or any act contrary to the two preceding paragraphs and, notably, any dismissal of the work contract in violation of these stipulations, is null and void ( article L. 245-5 (3) ).

Corresponding to article L. 253-1 of the Labour Law Code, introduced by the Act of November 28th 2006 on equality of treatment on the workplace, no person can be retaliated for reasons of his protests or refusal opposed to an act contrary to the principle of equality of treatment, such as an act of moral harassment, or as a reaction to a suit or legal action tending to respect the principle of equal treatment and this article stipulates furthermore that no person can be retaliated for having witnessed those acts or for having related them, whereas any disposition or any act contrary to the two preceding paragraphs and, notably, any

103 dismissal of the work contract in violation of these stipulations, is null and void

2.2. non-statutory regulation:

To our knowledge only collective agreements concluded by the most representative trade unions on a national level contain instruments regarding protection against harassment at work.

3. Institutional framework:

According to L. 245-8 of the Labour Law Code the Labour Inspection office ( ― Inspection du travail et des mines ― ) has the legal obligation to supervise and control the application of the legal rules concerning the protection against sexual harassment, whereas article L. 254-1 of the same Code foresees that the Labour Inspection office controls the application of the principles of equality of treatment on the workplace.

Furthermore, the Act of November 28th 2006 on equality of treatment on the workplace has created a Centre for the Equality of Treatment ( ― Centre pour l‘égalité de traitement ‖ ) which has the object to promote, to analyze and to supervise equality of treatment between all persons without discrimination founded on race, ethnic origin, gender, religion or convictions, disability and age ( article 9. ) In the exercise of its mission the Centre can : - publish reports, give opinions and recommendations and conduct studies on all questions related to discrimination - produce and give all information and documentation available in the field of its mission - bring help to persons who deem themselves victims of a discrimination by providing them a counsel and orientation service in order to inform the victims about their individual rights, the legislation, the jurisdiction and the means to affirm their rights.

As the sexual harassment is concerned, article L. 245-6 (1) of the Labour Law Code provides that the delegate assigned to supervise equality of treatment between men and women or, in his or her absence, the Workers delegation, is charged with the role of protecting the personnel against sexual harassment on the workplace and can propose to the employer all prevention action that he or she feels necessary. The Workers delegation and the delegate assigned to supervise equality of treatment between men and women are habilitated to assist and counsel the worker who has suffered a sexual harassment. The employee victim of a sexual harassment has the right to be accompanied and assisted by a delegate in the interview with the employer or the representative of him concerning the inquiry on the sexual harassment.

104

4. Procedures:

4.1. extra-judicial and pre-judicial procedures:

As described above the Labour Law office is competent for supervising and controlling the application of the legal rules concerning the protection against sexual harassment and controlling the application of the principles of equality of treatment on the workplace, i.e., when it is seized by a complaint by an employee or his trade union it can make inquiries on the workplace of the alleged victim of a sexual or moral harassment or of an act of discrimination and try to conciliate the parties involved. Moreover, the above mentioned Centre for Equality of Treatment, as described previously, has the power to assist an employee, victim of an act of discrimination, by informing him or her, prior to any legal action, about his or her individual rights, the legislation, the jurisdiction and the means to affirm his or her rights

4.2. judicial procedures:

Article L. 245-5 (3), § 2, of the Labour Law Code provides that in case of dismissal by the employer of an employee victim of a sexual harassment the employee can seize within fifteen days of the dismissal by a simple request the president of the Labour Court, the parties summoned and heard, in order to establish the nullity of the dissolution of the work contract and to order his confirmation or his reinstatement according to the dispositions of article L. 124-12, § 4. According to article L. 253-1, § 4, of the Labour Law code, in case of dismissal by the employer of an employee victim of an act of discrimination, such as an act of moral harassment, the employee can seize within fifteen days of the dismissal by a simple request the president of the Labour Court, the parties summoned and heard, in order to establish the nullity of the dissolution of the work contract and to order his confirmation or his reinstatement according to the dispositions of article L. 124-12, § 4. Besides, the trade unions justifying a general national representative or a representative in a particularly important economic sector can exercise before the civil and administrative courts the rights of an employee victim of acts of discrimination if these acts cause prejudice to collective interests.

As related above ( point 2.1. ) articles 454 and 455 of the Criminal Code referring to any forms of discrimination based on origin, colour of skin, gender, sexual orientation, family situation, age, health, disability, morals, political or philosophical opinions, trade union activities, membership, supposed or real, of an ethnic group, nation, race or a determined religion stipulate that any such discrimination, when this act of discrimination, in the field of work relations, subordinates the access to work or the work conditions to one of the elements mentioned before, is punished by an imprisonment of eight days to two years and a fine between 251 € and 25.000 € or one of these punishments.

105

The law presumes the intentional element of the behaviour of sexual harassment ( cf. article L. 245-2, § 3 ) when one of the three conditions related in point 1. ( definition and scope ) is fulfilled. In this case the employer has to prove that the behaviour of sexual harassment emanating from himself or from another hierarchical superior, from a work colleague or from an exterior person having professional relations with the employer such as clients or suppliers is not constitutive of an act of sexual harassment.

Furthermore, the employee victim of an act of sexual harassment can refuse to pursue the execution of the work contract and denounce the work contract without a term for grave motive with the allocation of financial compensation on behalf of the employer whose fault caused the immediate resolution of the work contract ( article L. 245-7 ).

Article L. 253-2 (1) of the Labour Law code provides that, when a person feels being damaged by the non-respect of the principle of equality of treatment and proves directly or by a trade union before the civil or administrative jurisdiction facts that allow to presume the existence of a direct or indirect discrimination, the defendant has to prove that there was no violation of the principle of equality of treatment.

Finally, we must underline also that article L. 521-4 (4) of the Labour Law code stipulates that the judgment from first instance or the sentence of the Court of appeal declaring the dismissal of an employee abusive or the resignation by the employee motivated by an act of sexual harassment condemns the employer to reimburse the Labour exchange ( ― Fonds pour l‘emploi ― ) the unemployment benefits of the employee for the period covered by the salaries or indemnities that the employer has to pay according to the judgment or the sentence.

5. Remedies and sanctions:

- As related above ( point 2.1. ) any act of discrimination as described in articles 454 and 455 of the Criminal Code is punished by an imprisonment of eight days to two years and a fine between 251 € and 25.000 € or one of these punishments.

- As articles L. 245-5 (3), § 2, and L. 253-1, § 4, of the Labour Law Code provide, when the president of the Labour Court is seized by a victim of sexual harassment in case of a dismissal or of an act of discrimination, such as an act of moral harassment, he has to establish the nullity of the dissolution of the work contract and order his confirmation or the reinstatement of the employee according to the dispositions of article L. 124-12, § 4.

- The employee victim of an act of sexual harassment can refuse to pursue the execution of the work contract and denounce the work contract

106 without a term for grave motive with the allocation of financial compensation for material and immaterial damage on behalf of the employer whose fault caused the immediate resolution of the work contract ( article L. 245-7 ). The material damage is considered in relation with the acts of sexual harassment which caused the dismissal by the employee and linked to the loss of salaries over a certain period, whereas the immaterial damage, destined to repair the offense of the dignity of a man or a woman, depends on the gravity and the frequency of the acts of moral harassment ( cf. Court of Appeal 30.01.2003 N° 26327 L‘ESTRADE c/ BARTHELEMY c/ ETAT ).

6. EU context:

We underlined in our introduction that before the law of November 28th 2006 on equality of treatment, such as modified, transposing the Directives 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, coming into legal force on January 1st 2007, the notion of moral harassment ( ― mobbing ― or bullying ) was not defined in Luxemburgish Labour law. Therefore, our Labour Courts developed a jurisdiction, mainly based on the decisions of the French Cour de Cassation, regarding moral harassment in which the burden of proof of an act of moral harassment was on the victim of such a behaviour who had to prove that, according to the general principle of article 1134 of the Civil Code, the author of these acts of moral harassment, i.e. the employer, has not fulfilled his contractual obligations of the work contract and who engages his contractual responsibility by this faulty behavior. It is no doubt that the above mentioned law, having implemented the Directives 2000/43/EC of 29 June 2000 and 2000/78/EC of 27 November 2000 in our legal framework, and the law of May 13th 2008 on the equality of treatment between men and women, having implemented the Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training, and promotion, and working conditions, will have an uncontestable impact on the evolution of our case-law in relation to harassment and violence at work, notably concerning acts of discrimination and amongst them acts of moral harassment or bullying.

As we underlined previously we feel that our system meets the requirements of the Framework agreement on harassment and violence at work adopted by ETUC, BUSINESSEUROPE, UEAPME and CEEP in the field of the European Social Dialogue on April 26th 2007 for, as we explained above, employees victims of sexual or moral harassment can make their complaints immediately without undue delay to their employers or the delegates assigned to supervise equality of treatment between men and women or, in their absence, the Workers delegation delegates, the employer having furthermore the obligation to take all

107 necessary prevention measures in order to assure the dignity of any person on the workplace, these measures including information measures ( cf. article L. 245-4 (3 ) ), and will get an impartial hearing by the employer, his substitute or another hierarchical superior, the employee having the right to be accompanied and assisted by a delegate in the interview with the employer or the representative of him concerning the inquiry on the sexual harassment. The victim will also receive support by the above mentioned delegates or Workers delegations or even trade unions in reintegration measures, being reminded that the president of the Labour Court, seized by an employee victim of sexual harassment or an act of discrimination having been dismissed, orders his confirmation or his reinstatement according to the dispositions of article L.124-12, § 4 ( articles L. 245-5 (3), § 2 and L. 253-1, § 4 ).

7. Examples:

Since the Directives 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation were not implemented in our legal system until the above mentioned law of November 28th 2006 on equality of treatment, coming into legal force on January 1st 2007, the Labour Courts developed a jurisdiction, mainly based on the decisions of the French Cour de Cassation, regarding moral harassment in which the burden of proof of an act of moral harassment is on the victim of such a behavior who has to prove that, according to the general principle of article 1134 of the Civil Code, the author of these acts of moral harassment, i.e. the employer, has not fulfilled his contractual obligations of the work contract and who engages his contractual responsibility by this faulty behaviour ( cf. Court of Appeal: 01.04.2004 N° 27759 LEDIG c/ CATRA S. à r. l. ; 29.03.2007 N° 30765 JONAS c/ HORSE-LUX; 22.06.2007 N° 30994 LUXAIR c/ SCHNEIDER; Labour Court of Esch-sur-Alzette: 11.12.2007 rép. N° 270/07 HAMZOUI c/ LUXCOIFFE S. à r. l. ).

As cases of sexual harassment are concerned, we can mention as a significant sentence the L‘ESTRADE c/ BARTHELEMY c/ ETAT case of January 30th 2003 in which the Court of Appeal underlines the principles of an act of sexual harassment such as defined by the articles of the Labour Law code and comes to the conclusion that the employer, i.e. the manager of a small private company running a pub, has sexually harassed a female employee by physical touches and indecent and offensive proposals, the manager being condemned, regarding the gravity and the frequency of the acts of sexual harassment, to pay a financial compensation of 2.500 € for immaterial damage suffered by the employee having dismissed. In the case MENDES PEREIRA c/ COMET S.A. c/ ETAT of September 16th 2003 the Labour Court of Esch-sur-Alzette considers that a female employee of the firm COMET S.A. has been for about two years the victim of acts of sexual harassment emanating from

108 another employee and, regarding the gravity and frequency of the acts of sexual harassment, condemns the employer to pay a financial compensation of 12.924 € for material damage and of 10.000 € for immaterial damage suffered by the employee having been forced to dismiss.

Esch-sur-Alzette, Luxembourg, June, 2008

Tom MOES, juge de paix à Esch-sur-Alzette, juge-suppléant au Conseil arbitral des assurances sociales – Past President of EALCJ.

109 MALTESE REPORT

Response to Questionnaire

Definition and scope

Protection from harassment is limited to specific categories of discrimination : age, sex, religion, disability etc. Protection against harassment is granted by the Constitution, the Industrial Relations Act of 1977, The Equal Opportunities (Persons with Disability) Act of 2000, The Employment and Industrial Relations Act of 2002 and The Equality for Men and Women Act 2003

The right to protection from harassment applies to all categories of workers. The definition must be intentional and not based on the perception of the victim and it is an objective definition.

The Law preventing harassment limits the human right of freedom of expression in that sense.

A distinction is made between the different types of harassment.

The worker is also protected against harassment by third parties.

In order to answer point 2, 4 and 5 of the questionnaire regarding our national regulatory frame work I am quoting Sections 26 to 32 and Sections 44 to 47 of the Employment and Industrial Relations Act. Sections 26 to 32 of the Employment and Industrial Relations Act: 26 (1) It shall not be lawful for any person - (a) when advertising or offering employment or when advertising opportunities for employment or when selecting applicants for employment, to subject any applicants for employment or any class of applicants for employment to discriminatory treatment; (b) in regard to employees already in the employment of the employer, to subject any such employees or any class of employees to discriminatory treatment, in regard to conditions of employment. (2) For the purposes of this article, discriminatory treatment shall include:

110 (a) the engaging or selection of a person who is less qualified than a person of the opposite sex, unless the employer can prove that the action was based on acceptable grounds related to the nature of the work or on grounds related to previous work performance and experience; (b) actions which apply to an employee, terms of payment or employment conditions that are less favourable than those applied to an employee in the same work or work of equal value, on the basis of discriminatory treatment; (c) actions whereby the employer knowingly manages the work, distributes tasks or otherwise arranges the working conditions so that an employee is assigned a clearly less favourable status than others on the basis of discriminatory treatment. (3) The provisions of sub-articles (1) and (2) shall be without prejudice to the rights and obligations prescribed by the Equal Opportunities (Persons with Disability) Act, and shall not apply to any preference or exclusion which is reasonably justified taking into account the nature of the vacancy to be filled or the employment offered, or where a required characteristic constitutes a genuine and determining occupational requirement or where the requirements are established by any applicable laws or regulations. (4) For the purposes of this article, the term "offering employment" includes recruitment or training of any person with a view to engagement in employment and in regard to a person already in employment, includes also promotion to a higher grade or engagement in a different class of employment. 27. Employees in the same class of employment are entitled to the same rate of remuneration for work of equal value: Provided that an employer and a worker or a union of workers as a result of negotiations for a collective agreement, may agree on different salary scales, annual increments and other conditions of employment that are different for those workers who are employed at different times, where such salary scales have a maximum that is achieved within a specified period of time; and Provided further that any distinction between classes of employment based on discriminatory treatment otherwise than in accordance with the provisions of this Act or any other law shall be null and of no effect. 28. It shall not be lawful to victimise any person for having made a complaint to the lawful authorities or for having initiated or participated in proceedings for redress on grounds of alleged

111 breach of the provisions of this Act, or for having disclosed information, confidential or otherwise, to a designated public regulating body, regarding alleged illegal or corrupt activities being committed by his employer or by persons acting in the employer’s name and interests. 29. (1) It shall not be lawful for an employer or an employee to harass another employee or to harass the employer by subjecting such person to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of that person is based on sexual discrimination and which could reasonably be regarded as offensive, humiliating or intimidating to such person. (2) It shall not be lawful for an employer or an employee to sexually harass another employee or the employer (hereinafter in this article referred to as "the victim") by: (a) subjecting the victim to an act of physical intimacy; or (b) requesting sexual favours from the victim; or (c) subjecting the victim to any act or conduct with sexual connotations, including spoken words, gestures or the production, display or circulation of written words, pictures or other material where - (i) the act, request or conduct is unwelcome to the victim and could reasonably be regarded as offensive, humiliating or intimidating to the victim; (ii) the victim is treated differently, or it could reasonably be anticipated that the victim could be so treated, by reason of the victim’s rejection of or submission to the act, request or conduct. 30. (1) A person who alleges that the employer is in breach of, or that the conditions of employment are in breach of articles 26, 27, 28 or 29, may within four months of the alleged breach, lodge a complaint to the Industrial Tribunal and the Industrial Tribunal shall hear such complaint and carry out any investigations as it shall deem fit. (2) If the Industrial Tribunal is satisfied that the complaint is justified, it may take such measures as it may deem fit including the cancellation of any contract of service or of any clause in a contract or in a collective agreement which is discriminatory and may order the payment of reasonable sums of money as compensation to the aggrieved party. (3) For the purposes of hearing and deciding cases of alleged discrimination, breaches of the principle of work of equal value,

112 victimisation or harassment, the Industrial Tribunal shall be composed of a chairperson alone in the manner set out in article 73(4). (4) Any action taken by a complainant in accordance with the provisions of this article shall be without prejudice to any further action that such complainant may be entitled to take under any other applicable law and shall also be without prejudice to any other action to which the respondent may be subject in accordance with any other applicable law. 31. Subject to the foregoing, the Minister may, after consultation with the Board, prescribe regulations to give better effect to the provisions of articles 26, 27, 28 and 29 and in particular for the elimination of any discriminatory practices in the employment or in the conditions of employment of any person or class of persons, for providing equal opportunities of employment for classes of persons who are at a disadvantage and to regulate access to the Industrial Tribunal and investigation and hearing by the Industrial Tribunal of complaints of alleged discrimination, reaches of the principle of work of equal value, victimisation or harassment. 32. Any person contravening the provisions of articles 28 and 29 shall be guilty of an offence and shall be liable on conviction to a fine (multa) not exceeding two thousand and three hundred and twenty-nine euro and thi rty-seven cents (2,329.37) or to imprisonment for a period not exceeding six months, or to both such fine and imprisonment.

Sections 44 to 47 of the Employment and Industrial Relations Act:

44. (1) In criminal proceedings instituted by the Police before the Court of Magistrates for an offence against the provisions of this Act, the Director or any officer of his department deputed by him may, notwithstanding the provisions of any law to the contrary, lay the charge before the court, produce the evidence, plead and otherwise conduct the prosecution instead of the Police. (2) The sworn statement of any officer mentioned in the last preceding sub-article to the effect that he has been deputed by the Director for the purpose therein stated, shall be conclusive evidence of such fact, should the proof thereof be required by the accused. (3) The Director or the officer deputed by him may, nevertheless, be produced as a witness, but should his evidence be required as

113 part of the case for the prosecution, he shall be heard in evidence before assuming the duties of prosecuting officer (other than that of stating the facts constituting the offence) unless the necessity of his evidence arises subsequently. 45. (1) Any employer who contravenes or fails to comply with any recognised conditions of employment prescribed by a national standard order or by a sectoral regulation order or collective agreement, or with any provisions of this Act or any regulations made thereunder shall, unless a different penalty is established for such offence, on conviction be liable to a fine (multa) of not less than two hundred and thirty-two euro and ninety-four cents (232.94) and not exceeding two thousand and three hundred and twenty-nine euro and thirty-seven cents (2,329.37). (2) Where any employer is convicted of - (a) having failed to pay wages at not less than the rate applicable in accordance with a recognised condition of employment as defined in Part III of this Act or with a contract of service whichever shall be the higher, or (b) having made any illegal deduction or inflicted any fine other than those specifically permitted by article 19, or (c) having failed to make payment of any bonus payable under article 23, or any other payment due by an employer to any employee under this Act or under any order made thereunder, or (d) having withheld any remuneration or any payment in lieu of notice, or (e) having failed to allow paid holidays as provided for or specified in any national standard order, sectoral regulation order or contract of service, or (f) having failed to effect payment of any moneys due to an employee under this Act or under any national standard order or sectoral regulation order or any other order made under this Act, the court shall, at the request of the prosecution, besides awarding the punishment imposed by the preceding subarticles of this article, order the offender, on proof of the amount, to refund or pay to the employee or employees concerned, or to the apprentice or apprentices concerned, as the case may be, the said amount due by him and, in the case of holidays with pay not allowed, a sum equal to the pay thereof, and any such order by the court shall be of the same force and effect and be executable in the same manner as if it had been given in a civil action duly instituted between the employee or employees concerned or the apprentice or apprentices concerned, as the case may be, and the employer:

114 Provided that nothing in this sub-article shall derogate from any right of the employee or apprentice, as the case may be, to recover by any other means any amount due to him. (3) Article 24 of the Criminal Code shall apply in respect of offences under this Act. 46. Where an offence against the provisions of this Act or of any regulations or orders made thereunder is committed by a partnership, company, association or other body of persons, every person who, at the time of the commission of the offence, was a director, manager, secretary or other similar officer of such partnership, company, association or other body of persons or was purporting to act in any such capacity shall be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of the offence. 47. (1) Proceedings for an offence under this Act or of any regulations or orders made thereunder may be commenced at any time within one year from the commission of the offence. (2) Where the offence relates to the failure by an employer to pay wages to an employee or failure to allow paid holidays as required by this Act or by any national standard order or sectoral regulation order, the offence shall be deemed to be a continuous offence if the employer had failed to pay the wages due to the employee regularly over the period of prescription.

I am also quoting Sections 9 to 12 and Sections 17 to 19 of the Equality for Men and Women Act and Section 18 of the Industrial Relations Act :

Sections 9 to 12 of the Equality for Men and Women Act :

9. It shall be unlawful for a registered organisation under the Employment and Industrial Relations Act, or for the committee of management or a member of the committee of management of such a registered organisation, to discriminate against - (a) a person, on the grounds of the disability of such person or a disability of any of the family members of such person - (i) by refusing or failing to accept his application for membership; or (ii) in the terms or conditions on which such organisation is prepared to accept his application for membership; and, or (b) a member of such registered organisation, on the

115 grounds of the disability of such member or a disability of any of his family member by - (i) denying him access to any benefit provided by the organisation or limiting his access to such benefit; or (ii) depriving him of membership of the organisation; or varying the terms of such membership. 10. (1) It shall be unlawful for an employment agency to discriminate against a person on the grounds of his disability or a disability of any of his family members: (a) by refusing to provide such person with any of its services; or (b) in the terms or conditions it offers to provide such person with any of its services; or (c) in the manner in which it provides such person with any of its services. (2) For the purposes of this article, an employment agency shall not be deemed to discriminate against a person on the grounds of his disability, if, taking into account his training, qualifications and experience relevant to the work sought, and all other relevant factors that it finds reasonable to take into account, such person would, because of his disability, be unable to carry out the inherent requirements of the work sought. TITLE 2 - EDUCATION 11. (1) Save as provided for in sub-articles (2) and (3) of this article, it shall be unlawful for an educational authority or institution to discriminate against - (a) an applicant for admission as a student on the grounds of his disability or a disability of any of his family members - (i) by refusing or failing to accept his application for such admission, or (ii) in the terms or conditions on which such educational authority or institution is prepared to admit him as a student; and, or, (b) a student on the grounds of his disability or disability of any of his family members by - (i) denying him access, or limiting his access, to any benefit provided by such educational authority or institution; or (ii) expelling him from the educational institution he is attending. (2) Where an educational authority or institution has been wholly or primarily established for students who have a particular or a specific disability, such educational authority or institution may restrict admission to such an institution to persons who only have that particular or specific disability and refuse admission to

116 other persons who do not have that particular or specific disability but another disability. (3) Where the admission of a person with a disability as a student in an educational institution would necessitate the procurement of services or facilities that are not required by students who do not have a disability, the educational authority or institution concerned may refuse or fail to accept the admission as a student of such a person in that educational institution if such authority or institution proves that the admission of such person in such institution would require services or facilities the provision of which would impose unjustifiable hardship on the educational institution or authority concerned. TITLE 3 - ACCESS 12. (1) Save as provided for in sub-article (2) of this article, it shall be unlawful for any person to discriminate against another person on the grounds of the disability of such other person or a disability of any of his family members: (a) by refusing to allow such other person access to, or the use of any premises, or of any facilities within such premises, that the public or a article of the public is entitled or allowed to enter or use (whether on payment or not); or (b) in the terms or conditions on which such person is prepared to allow such other person access to, or the use of any such premises or facilities; or (c) in relation to the provision of means of access to such premises including any necessary alterations to such premises or facilities so as to make such access possible; or (d) by requiring such other person to leave such premises or to cease to use such facilities or to unjustifiably restrict in any way such use. (2) Where - (a) such premises or facilities as aforesaid in this article are designed or constructed in such a way as to render them inaccessible to a person with a disability; and (b) any alteration of such premises or facilities would impose unjustifiable hardship on whoever is required to provide such an access, then it shall not be unlawful for such a person to discriminate against a person with a disability by refusing him such access to or use of any premises or facilities as are referred in paragraph (a) of sub-article (1) of this article or to refuse to carry out any alterations to such premises or facilities that would

117 otherwise render such premises or facilities accessible to a person with a disability.

Sections 17 to 19 of the Equality for Men and Women Act :

17. Nothing under this Act shall in any way be construed as prohibiting any person, authority or institution from complying with an order or award of a court or tribunal. 18. Nothing under this Act shall in any way be construed as prohibiting any person, authority or institution from discriminating against a person on the grounds of his disability if - (a) such disability constitutes an infectious or a contagious disease; and (b) discrimination as aforesaid is considered by the health authorities as imperative in the interests of public health. 19. The provisions of this Act shall not affect any provision in a charitable instrument that confers charitable benefits, or enables charitable benefits to be conferred, wholly or in part on persons who have a disability or a particular disability.

Section 18 of the Industrial Relations Act :

18. (1) An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort or quasi-tort on the grounds only - (a) that it induces another person to break a contract of employment; or (b) that it consists in his threatening that a contract of employment (whether one to which he is a party or not) will be broken or that he will induce another person to break a contract of employment to which that other person is a party; or (c) that it is an interference with the trade, business or employment of another person, or with the right of another person to dispose of his capital or his labour as he wills. (2) An act which by reason of sub-article (1) is itself not actionable, and a breach of contract in contemplation or furtherance of a trade dispute, shall not be regarded as the doing of an unlawful act or as the use of unlawful means for the purposes of establishing liability in tort or quasi-tort. (3) An agreement or combination by two or more persons to do

118 or procure the doing of any act in contemplation or furtherance of a trade dispute shall not be actionable in tort or quasi-tort if the act is one which, if done without any such agreement or combination, would not be actionable in tort or quasi-tort. (4) An act done by a person in contemplation or furtherance of a trade dispute and in pursuance of a directive issued by a trade union, whether he belongs to it or not, shall not be actionable in damages on the ground only that it consists in a breach of a contract of employment; and any act done as aforesaid, not being an act in breach of an industrial agreement, or of a settlement, decision or agreement which is still binding in accordance with the provisions of article 23 or 25, or of a decision or award of the Tribunal, shall not by itself entitle the employer to terminate the contract of employment of, or discriminate against, any person doing any such act as aforesaid, and shall not constitute a break in the service of such person. (5) The provisions of article 338(t) of the Criminal Code shall not apply to any agreement or combination by two or more persons to do or procure the doing of any act in contemplation or furtherance of a trade dispute. (6) Sub-article (4) of this article shall not apply to: (a) persons employed at the Air Traffic Control Centre at the Malta International Airport and in the Airport Fire Fighting Section of the said airport; and (b) such number of public officers holding or otherwise employed in any of the offices in the public service listed in the Schedule to this Act as indicated in the said Schedule to be required to be manned at all times for the continued provision by the Government of essential services to the community. (7) Where the number of public officers holding or employed in any of the offices aforesaid is greater than the number indicated in the said Schedule as essentially required, sub-article (6) shall apply only to the more senior among those officers who together make up that number (excluding only any of them who are on leave authorized expressly for the purposes of this sub-article, and only while they are so on leave), seniority being determined by any seniority inherent in the office itself or, in the absence of such seniority, by the length of the officers’ service in the office held by them or in which they are employed at the relevant time, and in cases of equal lengths of service by the age of the officers having the same length of service. (8) Any public officer to whom, by virtue of sub-articles (6)

119 and (7), sub-article (4) thereof does not apply, shall have his service with the Government terminated forthwith if , in contemplation or furtherance of a trade dispute or of any other action taken by two or more public officers or other workers (whether or not in pursuance of a directive issued by a trade union), or in support thereof or in sympathy therewith, such officer refuses or otherwise fails to carry out his full duties in accordance with his terms of service or his conditions of employment and under the direction of the competent authorities of the Government: Provided that, with respect to a public officer who, on 18th July 1977, was already refusing or otherwise failing to carry out his duties as aforesaid, his service with the Government shall not be terminated on the ground only of any such refusal or failure during the period ending at noon of 20th July, 1977 if, before the expiration of that period, he declares in writing to the Minister responsible for health his readiness to carry out his full duties as provided in this sub-article and takes up such duties immediately thereafter; and where the service of any such officer is terminated under this sub-article, he shall, by way of compensation, be paid a sum equal to the salary of such officer for three months. (9) Where a trade dispute has arisen or action as is referred to in sub-article (8) has been taken or either of them is contemplated, it shall be presumed that a refusal or failure by a public officer to perform duties as provided by that sub-article was made in contemplation or furtherance of such dispute or action, or in support thereof or in sympathy therewith, and no evidence to the contrary shall be allowed, unless as soon as possible after such refusal or failure such officer makes a declaration in writing to the Minister responsible for health of his readiness to carry out such duties as provided in that sub-article and takes up such duties immediately the inability to perform them has ceased. (10) The Schedule to this Act may be altered, added to or otherwise amended - (a) by a resolution of the House of Representatives; or (b) by the Prime Minister by order in the Gazette: Provided that an order as aforesaid may not increase the total number of officers to more than seventy.

2.2 Non-statutory regulation : As yet, we have none.

120 3. Institutional framework : The Industrial Tribunal and the Law Courts.

121 NETHERLANDS REPORT

Combating Harassment and Violence at Work in The Netherlands Report for EALCJ congress Vienna 2008

1. Definition and scope

The terminology used in legal documents and policy instruments varies according to the context. The Working Environment Act (Arbeidsomstandighedenwet 2007) sums up a list of factors which can lead to stress at work: sexual harassment („seksuele intimidatie‟, which refers to the intimidating aspect of sexual harassment), aggression and violence, harassment („pesten‟ which can be described as an intimidating form of teasing or bullying without application of violence), and high work pressure („werkdruk‟ which clearly falls outside the scope of harassment). In other texts different (combinations of) terms are used such as: ‗undesired conduct‘ (‗ongewenst gedrag‟), ‗violence and harassment‘ („geweld en pesterijen‟), ‗aggression and violence‘ (agressie en geweld).

The Working Environment Act offers protection against harassment regardless of the reason for the harassment. In addition, there are other legal provisions which offer specific protection against discrimination, including discriminating forms of harassment.

The protection of the Working Environment Act applies to: employees and public servants temporary agency workers certain categories of independent contractors, who perform their work in someone else‘s home

The scope of antidiscrimination legislation is broader, covering (inter alia) all types of workers.

The protection of the Working Environment Act is related to stress factors, which appears to involve subjective element on the side of the worker. The term „pesten‟ (a form of harassment) implies an intention to do harm. But the term „intimidation‟ (intimidating harassment, for example related to sex, religion, race) does not necessarily require such intention, for example in the case of rude remarks and discriminating jokes.

It is conceivable that the protection against verbal harassment involves a certain restriction of the exercise of the freedom of expression.

A distinction is made between physical harassment (violence) and psychological harassment („pesten‟) but this distinction is not sharp (for example ‗aggression‘ can stop very short of becoming actually violent), neither does it lead to different legal consequences. ‗Intimidation‘ is often very near (or even equal) to discrimination. Equal Treatment legislation offers special protection against discriminating forms of intimidation.

The Working Environment Act includes protection of workers against harassment by third parties such as clients and pupils.

2. Regulatory framework (national)

2.1 statutory regulation

The Working Environment Act (public law; includes implementation of the Framework Health and Safety Directive) obliges the employer to develop a policy to combat harassment and violence at work. The ‗working environment service‘ (arbodienst) to which the employer is affiliated can offer support in

122 developing this policy. Every employer must be affiliated to a ‗working environment service‘; the task of this service is inter alia to examine sick workers and to assist in their reintegration process. The employer must make an ‗inventary and evaluation of risks‘ for the working environment in his enterprise, including stress factors. The inventory of risks must include a plan to eliminate or diminish those risks. Thus, the employer is also obliged to make a plan to combat harassment and violence at the workplace. Workers representatives play an important role in the implementation of the general objectives set out by the legislator (see below).

The public law provisions of the Working Environment Act are monitored by the Labour Inspectorate. Violations can lead to administrative or penal sanctions. In addition to these public law provisions, the Dutch Civil Code (Burgerlijk Wetboek) contains private law, concerning the mutual rights and obligations of employees and employers, flowing from their employment contract.

Article 7:658 of the Civil Code regulates the responsibility and liability of the employer vis à vis the employee. The employer must prevent (as far as possible) that any harm should occur at the workplace to the employee or to his belongings. The employer is liable for damage if he fails to prove that he has met his obligations. Pursuant to case law the burden of proof in cases concerning damage at work is generally heavy for the employer and light for the employee. It is possible for an employee who has become a victim of harassment to claim compensation for material and immaterial damage from his employer.

An employee can also base a claim on article 7:611 of the Civil Code, which obliges his employer to act as a good employer.

The General Act on Equal Treatment (Algemene wet gelijke behandeling) (mainly private law) prohibits discrimination on grounds of religion or belief, political view, race, sex, sexual orientation and marital status. In addition there is separate legislation inter alia concerning sex- and age- discrimination at work. Employees who claim their rights or who protest against harassment are generally protected against victimisation if the harassment falls within the scope of antidiscrimination legislation. The General Act on Equal Treatment contains provisions to this effect (Articles 8 and 8a). If the harassment cannot be brought within the scope of explicitly forbidden discrimination, the employee is still protected against victimisation, even without an explicit provision. For example, the Court will not accept a dismissal if it turns out to be a victimisation. If victimisation leads to material or immaterial damage, it is possible for the employee to base a claim on Articles 7:658 and/or 7:611 of the Civil Code (see above).

Very serious forms of harassment (for example including violence or severe forms of racial discrimination) may lead to criminal persecution under the Penal Code.

2.2 non-statutory regulation

The ‗inventary of risks‘ (including plans for improvement) which the employer is obliged to make pursuant to the Working Environment Act, needs to be discussed with, and in larger enterprises (over 50 employees) approved by the works council. In 2004 it was reported that over 70% of the enterprises had made an inventary and evaluation concerning ‗undesired conduct‘. Over 50% had a confidential advisor for workers in cases of harassment and violence. Approximately half of the enterprises had a code of conduct concerning harassment and violence.

At sectoral level the organisations of employers and of workers have begun to draw up ‗catalogues‘ of measures which are apt to be included in the plans for improvement at the enterprise level, to be incorporated in the ‗inventaries‘. Tripartite consultations of Government and social partners has issued so-called ‗working environment covenants‘ (arboconvenanten), being non-binding agreements concerning policy measures for the improvement of the working environment, including the combating of harassment.

123 harassment. There is also a special handbook for the public sector, on how to deal with aggression and violence from the public. The Foundation of Labour (central organisations of employers and of workers) has published a (non- binding) code of practice.

The issue is also dealt with in collective agreements. In 2006 about 15% of the collective agreements contained provisions concerning sexual harassment, confidential officers and complaint procedures. About 8% of the collective agreements held provisions concerning ‗undesired conduct‘.

3. Institutional framework

The Ministry of Labour provides information and guidelines for the combating of harassment and aggression.

The Labour Inspectorate plays a role in the enforcement of the Working Environment Act. Main instruments are: investigation, consultation/advice/guidance, orders given to the employer to take certain measures, administrative fines it the employer refuses to comply. Also possible in serious cases: criminal persecution.

The Works Councils play an important role in the implementation of the Working Environment Act at enterprise level.

Organisations of employers and of workers conclude collective agreements (which may cover the issue of harassment) and develop policies, also concerning the combating of harassment, at sectoral and at central level (Foundation of Labour).

Legal conflicts concerning an employment contract (for example harassment) are decided in first instance by the Kantonrechter (chamber of the ordinary District Court), possibly followed by appeal and cassation.

If harassment involves a violation of the General Act on Equal Treatment (for example sexual ‗intimidation‘ or ‗intimidation‘ related to race or religion), the Equal Treatment Committee is competent to give a (non-binding) opinion.

4. Procedures

(…)

5. Remedies and sanctions

(…)

6. EU context

The Equal Treatment Directives under concern have been implemented by national legislation: General Act on Equal Treatment and provisions in the Civil Code concerning equal treatment of men and women (employees). Article 10 of the Framework Equal Treatment Directive 2000/78/EC and Article 8 of the Race Directive 2000/43/EC have been implemented by amendments of discrimination legislation concerning the burden of proof. This also affects the burden of proof in harassment cases involving discrimination. Prohibition of discrimination is also embedded in the constitution and in the Penal Code.

The Framework Safety and Health Directive has been implemented by the working environment Act. This Act was amended in 2007 with the aim to decentralise the working environment policies, leaving much room for employers and workers representatives to implement the Act in a way most suitable for the sector and enterprise under concern.

As explained above (under 2. Regulatory framework), the Dutch organisations of management and labour are developing policies to combat harassment and violence at work in a way that approaches the requirements of the Framework agreement. However, one cannot say that the Framework agreement

124 has been fully implemented at this moment. There are plenty of global policy instruments, but there is not always a guarantee of investigation without undue delay, impartial hearing and support with reintegration. In discrimination cases, the position of a worker who has become a victim of harassment is somewhat stronger through access to the Equal Treatment Committee and the reversal of the burden of proof after the establishment of facts from which it may be presumed that there has been discrimination.

125 NORWEGIAN REPORT

The Norwegian Report by Marita Lien Legal researcher The Labour Court of Norway

QUESTIONNAIRE

Combating Harassment and Violence at Work

6. Definition and scope

1.1 Statutes

1.1.1 Introduction Prohibition against harassment is to be found in

1) The Working Environment Act (WEA) § 4-3 Prohibition against all sorts of harassment at work.

2) WEA § 13-1 (2) Prohibition against harassment based on political views, membership in trade union, sexual orientation, disablement and age. These types of harassment are considered discriminating.

3) The Act relating to Sex Equality (ASE) § 8a) Prohibition against harassment based on sex, including sexual harassment.

4) The Act relating to Non-Discrimination (AND) § 5. Prohibition against harassment based on ethnology, national origin, descent, colour of skin, language, religion and beliefs.

The prohibition against harassment in the WEA § 4-3 is a part of the employers obligation to ensure that the work is arranged in a way that ―the employees‘ integrity and dignity are attended‖; The working environment must be ―fully secured‖.

1.1.2 The term ―harassment‖ Before 2005 ―harassment‖ was explicitly expressed in § 4-3 (§ 54C nr. 3):

“Unwanted behaviour with the intention, or the effect, offending somebody‟s dignity.”

126 The legislator, intentionally, did not define the term ―harassment‖ in the new WEA (2005) because the content of ―harassment‖ changes, depending on what is morally and social accepted.

The Labour Inspectorate often uses this definition:

“It is harassment when one or several individuals repeatedly, during a period of time, are exposed to negative actions (for example unwanted sexual attention, annoying behaviour, freezing somebody out, deprive of tasks or hurtful cheeks and teasing) from one or several other individuals. Further, it should be an imbalance in the condition of strength; the one being harassed must have difficulties defending himself. We are not speaking of harassment when two approximately “equal” persons come into conflict, or it concerns only one single episode of conflict.”

By ―sexual harassment‖, in the Act relating to Sex Equality (ASE), means:

―Unwanted sexual attention which is annoying to the person affected”.

1.1.3 The term ―violence, threats and invidious burden‖, WEA § 4-3 (4) ‖Violence, threats and invidious burden‖ are not defined in the WEA. As far as we can see it is not defined in the preparatory works either.

1.2. Codes of practice

Codes of practice often has defined harassment as: “repeated actions during a certain period of time”.

F.ex. Rt-1997-786 (Falken).

1.3. Collective agreements No definition.

1.4. Recommendations No definition.

Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability etc)?

According to the preparatory works to the WEA, the protection against harassment in WEA § 4-3 includes every form of harassment. Consequently all types of harassment are protected in the field of work. Harassment based on political views, membership in trade union, sexual orientation, disablement and age are explicitly mentioned in the discrimination-chapter in the WEA.

Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors?

The rights in WEA only apply to employees. The rights in The Act relating to Sex Equality and the Act relating to Non-Discrimination apply to each and every citizen.

127 Does the definition contain subjective elements i.e. does it have to be intentional and/or is it based on the perception of the victim)? Or is the definition objective, (i.e. not necessarily intentional and not based on the perception of the victim)?

The definitions, both in the WEAs and the ASEs preparatory works, contain subjective elements.

The preparatory works of the WEA says that the term ―unwanted‖ underlines that the offended employee‘s subjective experience of the situation can be decisive whether or not the actions are to be defined as harassment. The underlying purpose of the action is also relevant in the assessment.

The preparatory works of the ASE thorough discusses sexual harassment. The conclusion is that appraising what to be considered ―unwanted sexual attention‖ from objective criteria, is difficult. The Ministry says: ―whether the sexual attention is unwanted or not, should depend on each and every individual‘s opinion about it. The one exercising the attention must however get the chance to be aware of the attention being unwanted. If he or she then continues, the action must be considered as sexual harassment.

Does the law preventing harassment have any impact of the human right of freedom of expression?

The prohibition against harassment prevails, regardless of the remark being protected by the freedom of expression or not. Harassment is in other words never considered legal.

Is a distinction made between (for example) physical, psychological and sexual harassment?

No, the WEA says: ―harassment and other improper behaviour‖. The preparatory works says that this covers all sorts of harassment

Is the worker also protected against harassment by third parties (clients, pupils)?

The WEA also protect the employee against third parties; The employer is obliged to ensure the work being arranged in a way that ―the employees‘ integrity and dignity are attended‖ and the working environment in general to be ―fully secured‖; According to the preparatory works this also includes parties that represent a ―risk‖ for the employee. Examples: customers, clients, users, pasients etc.

4. Regulatory framework (national)

1. statutory regulation

Give a brief overview of the relevant legislation concerning harassment and violence at work. If possible, make a distinction between public (administrative) law, private law, and criminal law.

Include in your description the protection against victimisation (protection of a worker who protests or appeals against harassment).

Public Law: 1) The Working Environment Act (WEA) § 4-3 Prohibition against all sorts of harassment at work.

2) WEA § 13-1 (2). Prohibition against harassment based on political views, membership in trade union, sexual

128 orientation, disablement and age.

3) WEA § 2-4 Protection of an employee who protests or appeals against harassment. He or she is protected if the protest or appeal is ―justifiable‖ (―loyal‖). If so, the employer can not make ―reprisals‖.

4) The Act relating to Sex Equality (ASE) § 8a). Prohibition against harassment based on sex, including sexual harassment.

5) The Act relating to Non-Discrimination (AND) § 5. Prohibition against harassment based on ethnology, national origin, descent, colour of skin, language, religion and beliefs.

Criminal Law: 1) The Act relating to Punishable Offence § 228 and § 229 Corporal injury.

2. non-statutory regulation

Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes of practice, recommendations etcetera. Explain the content of these instruments.

1) Collective agreements As far as we know collective agreements do not have regulations relating to harassment as such. However, most collective agreements regulate discrimination and dismissals.

2) Codes of practice It must be assumed that the new legislation concerning harassment to a certain extend codifies practice.

Institutional framework

1. The Labour Inspectorate supervises the observance of some of the provisions in the WEA by controls and investigations, under here § 2-4. The Inspectorate give orders (pålegg) and make resolutions (vedtak) to make sure that the duties established by the WEA, regarding the working environment, are fulfilled. Examples: forbid dangerous chemicals being produced, demand investigations etc. Orders can also be given to the ones delivering and marketing a product. Further, the Inspectorate can give time penalty (dagmulkt) and also put a stop to the undertakings activity if orders are not fulfilled within the time limit.

2. The Parliamentary Commissioner of Equality and discrimination (Likestillings- og diskrimineringsombudet) and The Equality and Discrimination Committee (likestillings- og diskrimineringsnemnda) is supervising, and contributing carrying out, among others, the WEA, the ASE and the AND, see The Act relating to The Parliamentary Commissioner of Equality and

129 discrimination and the Equality and Discrimination Committee (diskriminineringsombudsloven) § 1.

The Parliamentary Commissioner gives statements whether or not conditions are at variance with §1, see over. If the parties voluntary don‘t conform to the statement, The Parliamentary Commissioner can submit the case to The Equality and Discrimination Committee. If the parties don‘t voluntary conform to the Commissioners statement and it must be assumed that waiting for the Committees‘ resolution will cause inconvenience or harm, the Parliamentary Commissioner himself can pass a resolution. The Parliamentary Commissioner have the authority to take up cases himself or on request from parties or others. However, cases brought in by other than the parties, demands consent from the party offended.

The Equality and Discrimination Committee try cases which is brought in by the Commissioner and resolutions appealed by one of the parties after trying by the Commissioner. The Committee have the authority to command the Commissioner to submit cases, tried by the Commissioner, to the Committee. The Committee can pass a resolution whether or not conditions are at variance with § 1. Further, the Committee can instruct stopping, correcting and other actions necessary to ensure that discrimination, harassment, instruction or retribution ceases and to prevent recurrence. The Committee can give time penalty to make sure these actions to be carried out. The Committee can not annul or alter a resolution given by other public administration organs. The Committees‘ resolutions are not binding for the Minstry or the King. In cases which indirectly rises questions about collective agreements, the parties in the collective agreement can have the question determined by the Labour Court. However, the Committee can give a statement saying whether or not the agreement is in variant with § 1. The Committees‘ resolutions can be submitted to the ordinary Court system and fully checked.

3. Workers Representatives assignments relating to harassment, and the working environment in general, are not defined, whether in the WEA or the Basic agreement concluded by the largest labour organization and employers‘ association (Hovedavtalen LO- NHO). However, they usually assist the employees in all kind of cases relating to work.

4. A safety deputy must be chosen in every undertaking covered by WEA. The safety deputy shall protect the employees‘ interests in cases concerning the working environment. The deputy must get up rules regarding protection, instructions and orders. The safety deputy has the authority to stop dangerous work until the Labour Inspectorate decides whether or not the work is to be considered dangerously.

5. A working environment committee must be established in undertakings with at least 50 employees. The committee is supposed to work for carrying out a ―fully secured working environment‖. It shall participate in the planning of protection- and environment tasks and follow closely the development in questions regarding the employees‘ safety, health and welfare. The environment committee try all questions regarding this – also in corporation with The Labour Inspectorate. If the working environment committee finds it necessary due to protect the employees‘ life and health, it has the authority to decide that the employer must carry out concrete actions to repair the working environment, within the frames of WEA. To elucidate if danger to the health exists, the committee also have the authority to decide that the employer shall execute measurements or investigations of the working environment. If the employer does not carry out the committees‘ decision, the case is to be put before the Labour Inspectorate.

6. The courts solve conflicts by interpret the law and passing judgements.

 Procedures

4.1. extra-judicial and pre-judicial procedures

Describe the available non-judicial procedures such as complaint procedures, conciliation, investigation by a competent institution. Make a distinction, if relevant, between individual and

130 collective procedures.

1. The Labour Inspectorate The Labour Inspectorate give orders and makes resolutions if necessary. An order must be given in writing and contain information about the right to complain. The complaint procedures are done in accordance with the Act relating to the public administration (forvaltningsloven) which means you have to complaint to the organ closest to The Labour Inspectorate, that is the Ministry. The Labour Inspectorate, when necessary, appoints experts to carry out controls and investigations.

2. The Parliamentary Commissioner of Equality and discrimination The Parliamentary Commissioner gives statements whether or not conditions are at variance with §1. If the parties voluntary don‘t conform to the statement, The Parliamentary Commissioner can submit the case to the Equality and discrimination Committee. If the parties don‘t voluntary conform to the Commissioners statement and it must be assumed that waiting for the Committees‘ resolution will cause inconvenience or harm, the Parliamentary Commissioner himself can pass a resolution. The Parliamentary Commissioner can take up cases himself or after request from parties or others. However, cases brought in by other than the parties, demands consent from the party offended. The Commissioner is an independent organ within the public administration, and the King and the Minstry can not instruct or commute a resolution.

3. The Equality and Discrimination Committee The Equality and Discrimination Committee try cases which is brought in by the Commissioner and resolutions appealed by one of the parties after trying by the Commissioner. The Committee have the authority to command the Commissioner to submit cases, tried by the Commissioner, to the Committee. The Committee can pass a resolution whether or not conditions are at variance with § 1. The Committee is an independent organ within the public administration, and the King and the Ministry can not instruct or commute a resolution.

4. Safety deputy If the deputy discovers potentially harmful conditions, he must notify both the employees and the employer. If the warning is not taken into consideration, within a reasonable period of time, the deputy must notify the Labour Inspectorate or the Working Environment Committee. The Safety Deputy shall participate in all inspections done by the Labour Inspectorate.

5. Working Environment Committee The Working Environment Committee have access to the investigation documents worked out by the Labour Inspectorate and the Police in cases regarding prevention of recurrence of sickness, accidents etc. at the work-place. It can also pass resolutions implying investigation by experts or commissions when necessary. The employer then has the right to put such a resolution before the Labour Inspectorate.

If the working environment committee finds it necessary due to protect the employees‘ life and health, it has the authority to decide that the employer must carry out concrete actions to repair the working environment, within the frames of WEA. To elucidate if danger to the health exists, the committee also have the authority to decide that the employer shall execute measurements or investigations of the working environment. If the employer does not carry out the committees‘ decision, the case is to be put before the Labour Inspectorate.

The Ministry can, in recommendation, give instructions regarding the Committees‘ work, including form of procedure.

4.2. judicial procedures

Describe the judicial procedures in a harassment case. Distinguish between the different types of procedures, such as civil litigation, labour court procedure, administrative and criminal procedure.

131

Give also attention to the following points of interest: -access to justice (locus standi) -time limits -burden of proof

1. Civil litigation A harassment case follows the ordinary procedures for civil litigation; First step is to procure an originating summon from a minor civil court. This is not necessary if both parties are assisted by a lawyer. On every step of the case, the parties can agree on conciliation due to the Act relating to civil litigation (ACL). The court shall continuously appraise the opportunity for an amicable settlement. The parties can agree on, or the court can decide, legal conciliation. According to the new ACL from 2005, the court have to deliver a judgement within 6 months from the writ was issued. Burden of proof is the usual predominance of probability.

2. Labour Court procedure As a point of departure a harassment case involving an individual, lies outside the Labour Courts‘ sphere of authority.

3. Criminal procedure Harassment-cases do not appear in the criminal court system, only cases involving violence. The power to institute prosecution is both public and individual, dependent on the severness of the corporal injury.

5. Remedies and sanctions

Describe the remedies and sanctions that may result from harassment cases, such as: -penal or administrative fine If an employer, voluntarily or involuntarily, commit an offence under the Act relating to Working Environment, he can be punished by fines or prison up to a 3 months period of time, or both (WEA § 19-1). -financial compensation for material and immaterial damage If the case is brought in as a matter of discrimination (WEA chapter 13), the offended can claim financial compensation for immaterial damage, regardless of the employers‘ guilt. Financial compensation for material damage can be claimed according to the common compensation rules. -re-instatement after dismissal related to harassment The point of departure is that the employee are re-instated if he or she has been unlawfully dismissed.

6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

Norway is politically, but not legally, committed to carry out Directive 2000/43/EC and Directive 2000/78/EC. This is because the legal authority behind these directives are the EF treaty article 13; this article is new and not a part of the EEC-agreement. Norway has nevertheless decided to carry

132 through the ―article 13- directives‖ in ASE and AND.

Directive 2002/73/EF was incorporated into the EEC-agreement July 9th 2004 and is a part of Norwegian law.

Directive 89/391/EEC is incorporated into the EEC-agreement and is a part of Norwegian law. In fact the WEA mainly correspond to this Directive. The Directive is also carried out in the regulations/provisions of the act, established by The Labour Inspectorate.

The Framework Agreement on harassment and violence at work is signed by the main trade unions and employers‘ associations in Norway (KS, NHO, HSH, Spekter, Fornyings- og administrasjonsdepartementet, LO, YS, Unio and Akademikerne). These organisations co-operate with The Labour Inspectorate to implement the Agreement in Norway.

Yes.

11.Examples

Describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant.

In RT-2004-1884 dealt with (omhandlet) financial compensation for material damage and immaterial compensation for mental damage caused by harassment. The Supreme Court found, after a concrete assessment (vurdering), that involuntary behaviour from the employer could not be stated and consequently no compensation. The Supreme Court said:

―There is no reason to doubt that As‘ own experience was that he was badly treated. But objectively I can not, when I temporarily leave out of account (ser bort fra) the significance of As‘ special trait of character (karaktertrekk), se any reason to comprehend (oppfatte) Bs‘ behaviour in general as harassment of A. The conclusion is the same when I se this behaviour in connection with the more concrete incidences I have gone through.‖

133

SLOVENIAN REPORT

EUROPEAN ASSOCIATION OF LABOUR COURT JUDGES

QUESTIONNAIRE Combating Harassment and Violence at Work

Definition and scope

How are the concepts of harassment, violence, bullying, etc. in relation to work defined in legal documents (statutes, collective agreements, codes of practice, recommendations) in your country?

Within the context of work and employment, the prohibition of sexual harassment, other types of harassment and violence is regulated by the Employment Relationships Act (ERA). Under this act: – Sexual harassment is any type of unwanted verbal, non-verbal or physical conduct or behaviour of a sexual nature which has the effect or purpose of offending the dignity of a person, particularly when this involves the creation of an intimidating, hostile, degrading, abusive or offensive environment. – Harassment is any type of unwanted behaviour connected with any personal circumstance which has the effect or purpose of offending the dignity of a person or of creating an intimidating, hostile, degrading, abusive or offensive environment. – Violence at work is any repeated or systematic, censurable or obviously negative and offensive conduct or behaviour directed towards individual employees at the workplace or in relation to work.

Under the ERA, sexual and other types of harassment are regarded as discrimination (violence is not explicitly regarded as such). It is also specifically stated that rejection on the part of the person affected of conduct that constitutes (could constitute) harassment may not provide justification for discrimination in employment or at work.

The Civil Servants Act (CSA), which applies to employees in state administration and public services, contains only a general provision on the prohibition of any physical, verbal or non-verbal conduct or behaviour by a civil servant that is based on any personal circumstance and which creates an intimidating, hostile, degrading, abusive or offensive working environment for a person and offends their dignity. However, civil servants are also subject to the provisions of the ERA.

Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability, etc.)?

Equal treatment (non-discrimination) and protection from harassment is guaranteed regardless of sex, nationality, race or ethnic origin, religion, disability, age, sexual orientation or other personal circumstances.

Does the right apply only to employees, or also to other categories of workers, such as agency workers, economically dependent workers and independent contractors?

134 The protection from harassment provided by labour legislation applies to employees including agency workers, but not to other categories of workers.

Does the definition contain subjective elements, i.e. does it have to be intentional and/or is it based on the perception of the victim? Or is the definition objective, i.e. not necessarily intentional and not based on the perception of the victim?

An employer‘s liability is based on culpable liability. This can involve any form of culpability and not just intentional conduct. Importantly, it is the victim that perceives certain conduct as harassment or violence. If he or she perceives it to be ‗an innocent joke‘, then a violation of the prohibition of harassment cannot be said to have occurred.

Does the law preventing harassment have any impact on the human right of freedom of expression?

It has no direct impact. Individual cases could involve a process whereby both rights are weighed against each other. In labour disputes, cases do arise where employees claim discrimination (without foundation) when, in fact, a permissible distinction is being made, e.g. when abilities at work are being assessed.

Is a distinction made between (for example) physical, psychological and sexual harassment?

The ERA treats sexual harassment, other types of harassment and violence at work unitary. It does not distinguish between different forms or types of prohibited conduct. Judicial practice is obliged, taking account of the the theory, to establish, on a case-by-case basis, what type of harassment or violence is involved.

Is the worker also protected against harassment by third parties (clients, pupils)?

An employer is obliged to protect an employee in particular from sexual harassment, other types of harassment and violence by the employer, superiors or colleagues. However, an employer is also liable to pay compensation for any damage caused to an employee at work or in relation to work. The conduct of third parties can also form part of this liability.

Regulatory framework (national)

Statutory regulation

Give a brief overview of the relevant legislation concerning harassment and violence at work. If possible, make a distinction between public (administrative) law, private law and criminal law.

The Constitution guarantees the right to personal dignity and safety as one of the human rights and fundamental freedoms, and guarantees the protection of the physical and mental integrity of every person, their privacy and personality rights.

A general law, the Act Implementing the Principle of Equal Treatment (AIPET), has been adopted in Slovenia. It guarantees equal treatment for all in the enforcement of their rights and in the exercise of human rights and fundamental freedoms. Under this act, harassment is understood to be unwanted conduct based on any personal circumstance that creates an intimidating, hostile, humiliating or

135 offensive environment for a person or offends his or her dignity. Harassment is regarded as discrimination.

The ERA separately and explicitly obliges an employer to safeguard and respect their employees‘ personality, and to take into account and protect their privacy. An employer is obliged to provide a workplace in which no employee is exposed to sexual harassment, other types of harassment or violence on the part of the employer, superiors or colleagues. To this end, an employer must adopt appropriate measures to protect employees from sexual harassment, other types of harassment and violence at work. Under the ERA, sexual harassment, other types of harassment and violence at the workplace are prohibited.

In addition to a general act, the AIPET, which prohibits discrimination, harassment and violence in the area of employment, education and training, social security and healthcare, and a special act, the ERA, which regulates such prohibitions in the area of employment relationships, criminal legal protection is also guaranteed.

The criminal offence of violating equality is committed by anyone who deprives a person of any of the human rights and fundamental freedoms recognised by the international community or specified in the Constitution or a law on the basis of nationality, race, colour, religion, ethnic affiliation, sex, language, political or other conviction, sexual orientation, financial position, birth, genetic heritage, education, social position or any other personal circumstance, or who restricts a person‘s right or freedom, or who grants a special right or benefit on the basis of such a distinction.

The criminal offence of bullying (―mobbing‖) at the workplace is committed by anyone who, at the workplace or in relation to work, humiliates or intimidates another person through sexual harassment, psychological violence, physical violence or unequal treatment. A person that commits such an offence is punished more severely if their conduct causes psychological, psychosomatic or physical illness, or if it reduces the employee‘s capacity to work. The amendment to the Penal Code that defines this criminal offence will enter into force on 1 November 2008. Up to now the offences of harassment and violence at the workplace have been handled within the framework of other criminal offences, e.g. maltreatment, defamation, violation of sexual inviolability (through abuse of position), etc.

Include in your description protection from victimisation (protection of a worker who protests or appeals against harassment).

Both the AIPET and ERA lay down that persons that are discriminated against and persons that assist victims of discrimination may not be subjected to adverse consequences as a result of taking measures whose aim is to enforce the prohibition of discrimination (prohibition of reprisals). Additionally, the refusal to engage in conduct relating to harassment could not provide justification for discrimination in employment and work.

Non-statutory regulation

Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes of practice, recommendations, etc. Explain the content of these instruments.

There are few collective agreements or employers‘ general acts that regulate issues relating to harassment and violence at the workplace. One collective agreement that does explicitly regulate this issue is the Collective Agreement for Banking and Savings Bank Activities, which stipulates that an employer is responsible for ensuring normal psychosocial conditions at work, preventing psychological, physical or sexual violence (‗mobbing‘) against employees or groups of employees, and protecting employees from such conduct. An employer is also obliged to operate preventively and to

136 acquaint employees of the right to dignity at work and of the right to have their privacy and personal integrity safeguarded. An employee‘s personality and dignity must be respected by every employee, and particularly by the manager of the work process and the employer‘s management board. If an employer, despite a written warning from an employee, group of employees, trade union or responsible labour inspectorate, fails to prevent the continuation of insulting or violent behaviour towards an employee at the workplace or unequal treatment in relation to their sex, or to protect them from sexual harassment, the employee may, under a procedure laid down by law, exercise the right of extraordinary termination of their contract of employment. In such a case the employee is entitled to severance pay and to compensation in the amount laid down in the collective agreement; specifically, compensation to at least the amount specified by law, increased by twice the basic monthly wage of the employee in the month prior to termination.

Institutional framework

Describe the role of the institutions occupied with prevention, monitoring and conflict resolution in the field of harassment and violence at work (for example, ministry of labour, equality committee/commission, workers‟ representatives, labour inspectorate, courts).

Monitoring of the implementation of the ERA is performed by the Labour Inspectorate of the Republic of Slovenia, which is an independent body within the Ministry of Labour, Family and Social Affairs. The Labour Inspectorate may order measures designed to remove an irregularity or violation, carry out a procedure for minor offence (impose a fine) and file a criminal information (denunciation) for criminal offence.

Labour inspectors are identifying few violations relating to the prohibition of discrimination (only 3 cases in 2006) and sexual harassment (no cases in 2006). There are two reasons for this. First, the number of complaints is low because of employees‘ fear of the consequences. Second, it is in practice very difficult to identify and prove that such conduct has taken place. Victims prefer to withdraw and to terminate their employment, and labour inspectors are restricted in the action they can take against a former employer.

The Council for Implementation of the Principle of Equal Treatment has been set up within the Government to monitor and assess the position of individual social groups from the aspect of implementation of the principle of equal treatment. An Office for Equal Opportunities has been established to coordinate the activities of individual ministries and governmental services relating to implementation of the AIPET and performance of the Council‘s technical and administrative duties. The Office is also home to the Advocate of the Principle of Equality. The Advocate deals with cases of suspected violation of the prohibition of discrimination, with the purpose of discovering and drawing attention to the existence of discrimination and harassment. To this end, the Advocate provides general information and clarifications concerning discrimination, draws attention to irregularities identified in the treatment of a specific case, and recommends ways in which the irregularities may be removed. He or she also offers assistance to victims of discrimination in other procedures for the exercise of rights relating to protection against discrimination.

Labour courts decide on disputes regarding liability for damages on the part of an employer for violating the prohibition of harassment and violence, as well as on disputes regarding the termination of contracts of employment. In cases where a contract is terminated by an employer for discriminatory reasons, the court decides on the legality of the termination and, as a rule, on the employee‘s return to work. In cases where an employee has extraordinarily terminated a contract of employment as a result of discrimination, harassment or violence, the subject of the dispute is exclusively the severance pay and damages, which must amount to at least the wages lost as a result of not working during the notice period.

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Procedures

4.1. Extra-judicial and pre-judicial procedures

Describe the available non-judicial procedures such as complaint procedures, conciliation and investigation by a competent institution. Make a distinction, if relevant, between individual and collective procedures.

The Advocate of the Principle of Equality deals with cases of suspected violation of the prohibition of discrimination (which also includes cases of workplace harassment). The procedure begins with a written or oral initiative entered in the records. The initiative may be anonymous; however, it must contain enough information to allow investigation of the case to proceed. The initiative must be made as soon as possible, but not later than one year after the violation took place. However, the Advocate may deal with the case after this period, if he or she assesses that the case is important or serious enough to warrant continuation. Treatment of a case is informal and free of charge.

A case usually proceeds in written form, where the Advocate may request that those involved provide them, by the deadline specified, with suitable clarifications and additional information necessary for an opinion to be issued. If the Advocate assesses that this will help to clarify the case, all involved parties may be invited to an interview (oral hearing).

If the victim of discrimination or a person assisting the victim of discrimination have been subjected to adverse consequences as a result of measures aimed at enforcing the prohibition of discrimination, the Advocate may, during investigation of the case, call on the legal entity or other subject at which the suspected violation of the prohibition of discrimination has taken place to take appropriate measures to protect the victim of discrimination or the person assisting them from reprisals, or to rectify the consequences of these reprisals.

The case is concluded with a written opinion in which the Advocate states their findings and assesses the circumstances of the case in relation to the existence or otherwise of a violation of the prohibition of discrimination. The Advocate notifies both parties of the findings. The Advocate may draw attention in the opinion to the irregularities identified, recommend ways in which they may be removed and call on the person suspected of violating the prohibition of discrimination to notify them of the measures to be taken by a specified deadline.

A labour inspector may, in addition to issuing (administrative) decisions in inspection procedures and imposing violation sanctions (fines), intervene in a dispute between an employee and employer. The consent of both parties is required. Any agreement signed has executory title (it is a special form of out-of-court settlement).

4.2. Judicial procedures

Describe the judicial procedures in a harassment case. Distinguish between the different types of procedure, such as civil litigation, labour court procedures, administrative procedures and criminal procedures.

Make particular mention of the following: 7. access to justice (locus standi) 8. time-limits 9. burden of proof

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If an employee believes that an employer is not fulfilling its obligations from the employment relationship or is violating any of their rights under the employment relationship, that employee has the right to request in writing that the employer removes the violation or fulfils its obligations. If the employer fails to fulfil its obligations under the employment relationship or fails to remove the violation within eight working days of filing of the written request by the employee, the employee may, within 30 days of the expiry of the deadline for fulfilment of obligation or removal of the violation by the employer, request judicial protection before the competent labour court.

The filing of a request for removal of the violation is a procedural precondition for judicial protection. The deadline for the filing of an action is a preclusive time limit. Failure to meet the time limit means that the action is rejected. However, an employee may enforce a pecuniary claim from the employment relationship – in the case of compensation as well – directly before a labour court. In such a case, the court takes into account only the period of limitation for claims, which in labour disputes is five years.

If in the event of a dispute a candidate or employee cites facts giving grounds for the suspicion that the prohibition of discrimination has been violated (which also applies to a suspicion of violation of the prohibition of sexual harassment, other types of harassment and violence), the employer must demonstrate that in the case in question it has not violated the principle of equal treatment or the prohibition of discrimination.

When harassment or violence at the workplace is being treated as a criminal offence, the principle of presumption of innocence must be observed, as must other procedural safeguards guaranteed in criminal procedures by the Slovenian Constitution and the Criminal Procedure Act (e.g. the right to have adequate time and facilities to prepare his defence; the right to be present at his trial and to conduct his own defence or to be defended by a legal representative; the right to present all evidence to his benefit; the right not to incriminate himself or his relatives or those close to him, or to admit guilt). The procedural position of the injured party (employee) in criminal procedures is substantially different to their position as plaintiff in civil procedures. It is not the primary intention of criminal procedures to provide legal protection of the injured party‘s interests.

Remedies and sanctions

Describe the remedies and sanctions that may result from harassment cases, such as: 10. penal or administrative fine

The criminal offence of workplace bullying (―mobbing‖) is punishable by prison sentence of up to two years; this rises to three years if more serious consequences are involved (illness or reduction of an employee‘s capacity to work). It is the individual (natural person) that bullies the employee who is punished for committing the criminal offence, not the employer (as legal entity). An employer that has failed to ensure safeguards against sexual harassment, other types of harassment or violence is punished with a fine of between EUR 3,000 and 20,000. If a smaller employer is involved (i.e. an employer that employs 10 employees or fewer), the fine is between EUR 1,500 and 8,000. If the employer is an individual, the fine is between EUR 450 and 1,200. The employer‘s responsible person or a responsible person within a state body is also fined between EUR 450 and 2,000.

11. financial compensation for material and immaterial damage

An employer is liable to pay compensation to an employee under the general rules of civil law, which are based on the principle of full compensation. When calculating pecuniary loss, a court awards compensation in the amount necessary to ensure that the employee‘s pecuniary position is as it would have been had the adverse conduct or failure to act by the employer not taken place. The employee is entitled to just monetary compensation independent of any pecuniary damages reimbursed, and even if no pecuniary damages are awarded, for mental pains suffered as a result of a

139 reduction in the ability to lead an active life, an insult to their reputation and honour, the curtailing of their freedom or personality rights and anxiety caused to them, if the circumstances of the case, particularly the degree and duration of pains and anxiety, justify this. The level of compensation for non-pecuniary damage is dependent on the importance of the rights affected and the purpose of the compensation; it may not, however, be used to support purposes incompatible with the nature of the compensation and the reason why it has been awarded.

12. re-instatement after dismissal related to harassment

The ERA states that the filing of an action or participation in a procedure against an employer for an alleged violation of contractual and other obligations under an employment relationship before arbitration, judicial or administrative bodies provide no grounds for regular termination of a contract of employment by an employer. This also applies in cases where an employee alleges violation of the prohibition of harassment and violence, or where he or she claims such a violation in an appropriate procedure at the employer or other bodies.

In such cases, termination of a contract of employment is illegal and results, as a rule, in reinstatement of the employee. Only in the event that the court establishes in proceedings that continuation of the employment relationship is no longer possible may it terminate the contract of employment, set the date of termination of the employment relationship and award suitable compensation (from 1 October 2008 this compensation will be limited by law to no more than 18 months‘ salary).

Violation of the principle of a prohibition of discrimination and the obligation to ensure protection from sexual harassment, other types of harassment and violence may provide grounds for extraordinary termination by the employee. The employee must first draw the employer‘s attention to the requirement to fulfil its obligations and notify the Labour Inspectorate of the violations in writing. If the employer fails to fulfil its obligations or to remove the violation within 8 days, the employee has 30 days in which to terminate their contract of employment. Although it is the employee that has terminated the contract, it is deemed in such cases that it is the employer that has done so. This means that termination does not proceed through fault of the employee; the employee therefore retains their rights ensuing from insurance against unemployment (particularly to benefit payments) and is also entitled to the severance pay stipulated for redundant workers. The employee may also claim compensation to at least the amount of the pay lost as a result of not working during the notice period.

6. EU context

Describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to the following instruments:

Does your system meet the requirements of the Framework Agreement on Harassment and Violence at Work?

The AIPET and ERA have transposed into Slovenian legislation the prohibition of discrimination, harassment and violence at work in accordance with the EU Directives. Victims of discrimination may request that violations be dealt with in judicial and administrative procedures and before other competent bodies under conditions and using the method laid down in law, and have the right to compensation under the general rules of civil law. The law also stipulates a shifted burden of proof in procedures commenced by suspected victims of discrimination.

One of the outstanding issues, which relates to the issue of whether European law has been fully or

140 suitably transposed into domestic legislation, concerns the participation of non-governmental organisations in procedures in which violations of the principle of equal treatment are dealt with. The AIPET states that, in accordance with the law, they may participate in judicial and administrative procedures commenced by victims of discrimination as a result of a violation of the prohibition of discrimination. In Slovenian legislation, only those entities alleging that their rights have been damaged have procedural legitimacy (with rare exceptions, e.g. consumer disputes, minor copyright disputes). Appropriate amendments to the legislation need to be made to grant active procedural legitimacy to non-governmental organisations, and perhaps to trade unions as well, if the Directives are to be fully implemented.

Give particular attention to the procedure mentioned in paragraph 4: 13. investigation without undue delay; 14. impartial hearing; 15. support with reintegration.

In Slovenian legislation, a separate Act guarantees the right to hear a case (before the Court) without undue delay. It prescribes a procedure for the speeding-up of decision-making when proceedings have become disproportionately protracted. Moreover, according to law, labour disputes are to be resolved speedily. The problem in practice is that there is a large number of labour disputes, with priority given to disputes concerning termination of a contract of employment and other disputes concerning the termination of an employment relationship. Proceedings in compensation disputes do therefore tend to take longer. The second reason for the duration of proceedings is the fact that discrimination, harassment and violence at the workplace are, despite the shifted burden of proof, difficult to prove.

Impartial hearing, including examination of the parties involved, is guaranteed in judicial procedures. The rule of reintegration of an employee who has had their contract of employment unlawfully terminated applies in labour legislation, and therefore also in cases where termination is unlawful because of discrimination or as a result of harassment or violence at the workplace.

Examples

Describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant.

Judicial disputes relating to harassment and violence at the workplace are still disproportionately few in number, but we are aware that such conduct is not as uncommon in practice as the figures suggest. For example, research carried out by the Office for Equal Opportunities (in collaboration with trade unions) in 2007 demonstrated that one in three women had been victims of verbal sexual harassment, and one in six had been victims of non-verbal and physical sexual harassment. One in four men had also been victims of verbal sexual harassment.

A number of judicial disputes have ended at the Labour Courts of first instance with a settlement being reached or the action being withdrawn (as a result of an out-of-court settlement or for other reasons). Labour courts have dealt with a number of disputes in which an employer terminated the contract of employment of employees that insulted or maltreated colleagues or subordinates (male and female). These cases show that employers are aware that such conduct is unacceptable. As utmost measure they remove such employees from the workplace. They are thus meeting their obligation to provide a suitable working environment in which employees are not exposed to harassment and violence.

A number of compensation disputes are ongoing. One such dispute, which is still before the revision court, involves the case of a senior employee insulting and maltreating a female employee over a period of 9 months (using words to suggest that she is incapable, stupid, mad and a liar, making threats against her, etc.). The court established that this repeated, censurable and clearly negative and insulting behaviour constituted an impermissible encroachment on her personality and dignity. The conduct placed psychological strain on the plaintiff, making her feel uneasy, anxious, offended and ashamed. According to the court‘s findings, all elements prescribed by law for liability for compensation have

141 been shown to be present: impermissible conduct, damage, causal link and fault. The court awarded compensation for non-pecuniary damage to the employee of EUR 5,918 (the amount she claimed). In calculating the compensation due, the court took account of the fact that although the plaintiff did not have to seek medical assistance, she had nevertheless suffered mental stress for a prolonged period of time as a result of pressure placed on her by a senior employee and that, as a subordinate employee, she felt she was in a position that offered her no way out. Since there is as yet no case-law relating to compensation for psychological violence at the workplace, the court used the compensation awarded in civil procedures for insult to reputation and honour in order to reach a sum.

The first case of sexual harassment at the workplace to conclude with a final judgement of conviction being handed down to the defendant is also noteworthy. The criminal proceedings featured heavily in the media and produced a great deal of public interest.

The perpetrator was found guilty of committing four continuing criminal offences of violating sexual inviolability through abuse of position. The offences were committed against four different female employees over an extended period of time. They were fearful of opposing his conduct because they were aware that those who had done so in any way had been bullied, transferred and demoted. They were therefore afraid of losing their jobs. The initiative to commit the acts under consideration always came from the perpetrator and never from the injured parties. He generally committed them when no third party was present. The court assessed that the perpetrator‘s conduct had far exceeded the customary method of communication and that it was sexually motivated, which is how the injured parties themselves perceived and experienced it. The finding of the court – that the perpetrator was senior to the injured parties, and that they were, in a labour-law context, dependent on him and therefore put up with his behaviour despite making it clear that they did not like it – was particularly crucial.

The perpetrator was given a suspended sentence of 14 months‘ imprisonment, which will only be served if he does not commit a criminal offence in a four-year probationary period.

Ljubljana, 18. 6. 2008 Miran Blaha Vrhovno sodišče Republike Slovenije

142 UNITED KINGDOM REPORT

EALCJ QUESTIONNAIRE:

COMBATTING VIOLENCE AND HARASSMENT AT WORK

1. How are the concepts of harassment, violence, bullying, etc. in relation to work defined in legal documents (statutes, collective agreements, codes of practice, recommendations) in your country?

Primarily the definitions of harassment are found in the equality legislation which addresses discrimination on grounds of sex, race, disability, religion or belief, sexual orientation and age. The provisions are not identical. Collective agreements are not used as a means of interpretation of harassment. Codes of practice from certain recognised bodies do provide guidance e.g. Department of Trade and Industry ( sex discrimination), Arbitration and Conciliation Service ( bullying and harassment). In cases of sex and race discrimination tribunals are required to take into account relevant codes of practice provided by the relevant commissions ( which are now unified as the Commission for Equality and Human Rights (‖CEHR‖)).

2. Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability etc.)?

Each equality statute or regulation deals with harassment under the specific heading of the legislation e.g. disability, race. In addition the Protection from Harassment Act 1997 ( ―PHA‖) provides legal redress without reference to any specific category of discrimination. Non-statutory claims may also be brought in negligence for breach of the employer‘s duty of care to provide a safe system of work. Claims may also be brought for breach of contract for breach of the same duty and of the duties to provide reasonable support to employees in their duties without harassment from colleagues and of the implied duty of trust and confidence.

3. Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors?

Applicants for employment are covered by equality legislation. In addition to employees, protection extends to individuals who have contracted personally to do work. It also covers contract workers i.e. supplied under a contract with an employer to do work for a third party. Categories of individual are covered to whom employment protection does not generally apply e.g. crown servants, members of the armed forces ( subject to certain limitations). Claims may also be brought against certain bodies with whom there is no working relationship e.g. trade organisations, vocational training providers, qualification bodies such as the Law Society or General Medical Council by holders of or applicants for the qualification. Claims may also be brought by former employees if they arise out of and are closely connected with the employment relationship.

4. Does the definition contain subjective elements (i.e. does it have to be intentional and/or is it based on the perception of the victim or is the definition objective (i.e. not necessarily intentional and not based on the perception of the victim?)

Claims brought under the equality legislation may be based on the purpose of the unwanted conduct or on its effect. In the latter case the perception of the victim (the subjective element) and the reasonableness of that perception (the objective element) are taken into account. The test under the PHA is objective. Similarly a claim in negligence applies an objective test.

5. Does the law preventing harassment have any impact on the human right of freedom of expression?

The Human Rights Act 1998 requires courts and tribunals to interpret national legislation in conformity with Convention rights. Article 10 has been considered in relation to certain harassment claims – for

143 example, by a disgruntled applicant for planning permission who subjected a local politician involved in the refusal to aircraft flying over her home trailing banners with insulting messages. He claimed it was a denial of his freedom of expression for the court to uphold the politician‘s harassment claim based on Article 8 (physical or psychological integrity).

6. Is a distinction made between (for example) physical, psychological and sexual harassment?

In claims brought under equality legislation no distinction is made between physical and psychological harassment as part of a claim. It is a matter of the successful claimant proving that his/her loss arises naturally and directly from the act of harassment. Compensation for personal injury ( pain and suffering) may include physical and psychiatric elements. In addition employment tribunals may award compensation for injury to feelings. Stricter criteria are applied in breach of contract or negligence claims.

2. Regulatory framework (national)

2.1 statutory regulation

The primary legislation which includes harassment and victimisation provisions: Race Relations Act 1976; Sex Discrimination Act 1975 ( which also includes gender reassignment; Employment Equality (Religion or Belief) Regulations 2003; Employment Equality (Sexual Orientation) Regulations 2003; Disability Discrimination Act 1995; Employment Equality (Age) Regulations 2006. The claims are brought by individuals against the parties identified in question 3 above and also may be brought against individuals for whom the employer is legally responsible. The claims are brought as private law claims in the employment tribunals. Claims (other than for dismissal) are subject to a preliminary grievance procedure. Harassment claims may be brought by individuals in the civil courts under the Protection from Harassment Act 1997. Criminal prosecutions may also be brought under this act. The Health and Safety at Work Act 1974 provides employees with protection from psychological harm. It requires an employer to carry out a risk assessment under health and safety regulations. Enforcement is by the Health and Safety Executive or local authority which have power to bring criminal proceedings for breach. Civil proceedings may be brought for breach of statutory duty also. A worker who suffers a detriment as a result of making a protected disclosure (‗whistle-blowing‘)to his employer may bring proceedings for compensation in the employment tribunal.

2.2 non-statutory regulation

Employers may include specific policies as part of the contract of employment. Contractual terms in breach of the discrimination legislation are void. Collective agreements may also be specifically incorporated as contractual terms, although there content may be expressed in general, aspirational terms. Codes of practice have been issued by the three commissions formerly responsible for matters concerning sex, race and disability discrimination. Evidence of a failure to comply is admissible in employment tribunal proceedings. The tribunal takes into account any relevant provision of the code in question when deciding whether there has been a breach. The CEHR now has responsibility for all such codes including religion or belief, sexual orientation and age. Recommendations to remove or reduce the adverse effect of a discriminatory act on a complainant may be made by a tribunal following a claim by an individual or by the CEHR.

3. Institutional framework

Monitoring is primarily carried out by the CEHR which is required to work towards the elimination of harassment. Commissioners are appointed by the Secretary of State to whom an annual report on the activities of the CEHR is sent. Its activities extend to the issuing of codes of practice, conducting enquiries and investigations, providing legal assistance. Every 3 years the CEHR is required to submit to the Secretary of State a report on the effectiveness of equality and human rights legislation.

144 The provisions of the ‗Framework agreement on harassment and violence at work‘ are to be implemented through the Trades Union Congress (―TUC‖) and Confederation of British Industry (―CBI‖) by the promotion of good practices and procedures in the workplace. The Health and Safety Executive is responsible for enforcement of the PHA and related health and safety provisions. Employment tribunals may make recommendations ( See 2.2 above).

4. Procedures

4.1 extra-judicial and pre-judicial procedures

Employees must follow a statutory grievance procedure with the employer before instituting proceedings ( except for dismissal) in the employment tribunal. The Arbitration, Advisory and Conciliation Service (ACAS) provides independent advice before proceedings are started and an officer from ACAS is automatically assigned to each employment tribunal case to assist in promoting settlement. Certain employment tribunals currently operate a judicial mediation scheme in which cases of at least 3 days estimated duration are considered for mediation by an employment judge. The CEHR may conduct inquiries into relevant issues of equality and diversity, human rights, the promotion of good relations between different members of specified groups i.e. the categories covered by specific discrimination laws. The CEHR may also undertaking investigations into alleged unlawful discriminatory acts. If satisfied that an unlawful act has occurred, the CEHR may serve an unlawful act notice requiring the offender to produce an action plan. Enforcement of the notice is through the civil court. Failure to comply is enforceable as a criminal action. The CEHR may also enter into individual agreements not to commit an unlawful act which is enforceable in the civil court.

4.2 judicial procedures

Employment tribunals deal with the bulk of claims concerning violence or harassment at work. Individual claims are brought for unfair dismissal ( including constructive dismissal) which may concern bullying or harassment unrelated to any specific group. Such claims may also include, if appropriate, specifically pleaded harassment claims related to the six categories referred to in paragraph 1 above. The latter claims can be pursued independently but must be brought before an employment tribunal. There may be preliminary hearings to give directions for preparation for trial or to resolve preliminary issues e.g. whether the claim was presented in time. The hearing is conducted by an employment judge sitting with 2 non-legal members. The parties attend in person with their witnesses to give evidence. They may be represented by lawyers, non-lawyers or by themselves. There is a limited right of appeal on issues of law. There is a limited entitlement to the award of costs. Employment tribunals have a limited right to hear contract claims which are otherwise heard in the civil courts where claims for negligence or under the PHA can be pursued. There is no provision for the involvement of ACAS or for judicial mediation. Trials are before a judge alone. There is a wide discretion to award costs. Criminal proceedings are limited to some claims under the PHA and health and safety legislation. The CEHR has the capacity to institute or intervene in legal proceedings if they appear to the CEHR to be relevant to one of their functions. Employment tribunal proceedings must be brought within 3 months of the relevant act subject to provision for extension of time on just and equitable grounds (or the more limited test of reasonable practicability in dismissal cases). Claims in the civil courts for breach of contract may be brought within 6 years or, in negligence, within 3 years. The civil courts require a claimant to prove his/her case on the balance of probabilities. In the employment tribunal it is for the employer to show the reason for dismissal. Once done, the reasonableness of the employer‘s action in the circumstances is determined in accordance with equity and the substantial merits of the case. In discrimination cases it is for the claimant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the breach. If the respondent fails to prove that he did not commit the breach, the tribunal shall uphold the complaint.

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5. Remedies and sanctions

The possible remedies for unfair dismissal are reinstatement, reengagement or compensation for financial loss. An award of financial compensation may also be made in a case of detriment arising from a protected disclosure. In discrimination claims the tribunal may make an order declaring the rights of the parties in relation to the act complained of, make a recommendation for the respondent within a specified time to remove or reduce the adverse effect on the claimant, award damages. Damages may be awarded for injury to feelings, damages for physical and psychiatric injury, aggravated damages where the respondent has behaved maliciously or oppressively. In both unfair dismissal and discrimination cases, claims may be brought against the employer, and in discrimination cases, named individuals. The employer may seek to rely on the statutory defence that he took such steps as were reasonably practicable to prevent the employee doing the act in question. A similar defence is available to principals. In civil proceedings for breach of contract damages may be awarded for loss which was in the reasonable contemplation of the parties when the contract was made. This may include non-economic loss. In claims in negligence damages may be awarded for the type of harm which was reasonably foreseeable including non-economic loss. A criminal prosecution under the PHA may result in a fine and/or imprisonment. A civil claim may result in damages being awarded. An employer cannot avoid liability for the actions of his employee. An employer in breach of a prohibition notice served by the Health and Safety Executive may be subject to criminal proceedings resulting in a fine or imprisonment. A civil claim for damages for breach of statutory duty may be brought under the Health and Safety at Work Act 1974.

6. EU context

The implementation of national law to correspond with various directives dealing with discrimination has given rise to numerous cases challenging the correctness of the implementation which continue to this day. Even after amendments to the race and sex discrimination statutes, the courts have found deficiencies particularly on the issue of causation. Last year in an application for judicial review of the implementation of the Equal Treatment Directive into national law the High Court ruled that the formulation ―… on the grounds of her sex…‖ introduced an impermissible element of causation (i.e. what was the reason for the harasser‘s action? ) in comparison with the wording of the directive (i.e.‖… related to the sex of a person…‖) which focuses on the nature of the conduct. Amending legislation has now substituted ―…unwanted conduct that is related to her sex or that of another person.‖ By parity of reasoning similar criticisms are made of the five other discrimination types. A similar criticism of the Sexual Orientation Regulations was upheld by the Employment Appeal Tribunal this year. Similar problems have been encountered when considering the liability of employers for the harassment of employees by third parties with whom the employer has no contractual relationship. Attempts by the lower courts to interpret the legislation to give effect to the directive on the issue of sexual harassment were defeated eventually by the House of Lords. The failure of legislative draftsmen to adopt the wording in the discrimination directives more closely has created unnecessary uncertainty in the interpretation of the national laws on harassment.

7. Examples

Brumfitt-v-Ministry of Defence: In this case the claimant attended a lecture with a group of other women and men in which the lecturer persistently used offensive language. Her claim for sexual harassment failed as the language was directed at all the group and was not discriminatory. There was no evidence that it was directed at her as a woman in particular. It may now be argued that the lecturer‘s language amounted to ‗…unwanted conduct of a sexual nature..‘ so as to bring in within the revised definition of sexual harassment.

J van Gelder 27 May 2008

146 APPENDIX II

EUROPEAN ASSOCIATION OF LABOUR COURT JUDGES

Combating Harassment and Violence at Work

SYNTHESIS NATIONAL REPORTS

1. Definition and scope.

1.1 How are the concepts of harassment, violence, bullying, etc. in relation to work defined in legal documents (statutes, collective agreements, codes of practice, recommendations) in your country?

Austria You can find the relevant legislation concerning harassment and violence at work and the protection against victimisation in the following Acts: - Equal Treatment Act (―Gleichbehandlungsgesetz‖ (GlBG), BGBl I 2004/66; for the private sector) - Federal Equal Treatment Act (―Bundes-Gleichbehandlungsgesetz‖ (B-GlBG), BGBl 1993/100; for the civil service) (see 5.: minimum financial compensation of 720 Euros in harassment cases on all relevant grounds) - Employment of Disabled Persons Act (―Behinderteneinstellungsgesetz‖ (BEinstG), BGBl 1970/22) Belgium The Act of the 11th of June 2002, relating to the protection against violence and moral or sexual harassment at work, which is included in the Act of the 4th of August 1996, relating to the well-being of workers, when carrying out their work, and which explicitly deals with sexual harassment or harassment based on sex, defines sexual harassment at work as ‗‗all types of verbal, non verbal or physical behaviour of a sexual nature which the guilty party knows or should know will affect the dignity of men and women in the workplace.‖ Czech Republic Legal relations arising during the course of the performance of employment are regulated by a code of labor law – Act No. 262/2006 Coll., the Labor Code. It contains, inter alia, a general regulation of equal treatment, prohibition of discrimination and consequences of the breach of rights and duties ensuing from the violation such labor

147 relations. In applying the right to employment, it shall be prohibited to discriminate against an individual, directly or indirectly, on grounds of sex, sexual orientation, racial or ethnic origin, nationality, (state) citizenship, social background, family background, language, health condition, age, religion or confession, property, marital or family status or duties towards one‘s family, political or other conviction, membership of, and activity in, political parties or political movements, trade union organizations; discrimination on grounds of pregnancy or maternity shall be regarded as discrimination on grounds of sex. Discrimination shall also mean conduct (activity), which involves inciting, encouraging or giving rise to pressure aimed at discrimination. ―Harassment‖ shall be such conduct that is justifiably regarded by another (natural) person as unwanted, inappropriate or insulting with the purpose of effect of degrading the dignity of this person or of creating a hostile, degrading or uneasy environment and can include sexual harassment, sexual orientation, racial or ethnic origin, a health disability, age and religion or confession.

Demark Estonia According to paragraph 12 in the Constitution of the Republic of Estonia everyone is equal before the law. No one shall be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds.

Finland The regulation of harassment and threat of violence at work is to be found in three statutes, which have partly overlapping provisions on these matters. The rules on prevention of threat of physical violence at work are contained in Sec. 27 of the Occupational Health and Safety Act (2002). The provision includes:

Appropriate safety arrangements and equipment needed for preventing or restricting violence and an opportunity to summon help shall be provided at the workplace. The employer shall draw up procedural instructions for such jobs and workplaces, controlling threatening situations must be considered in advance and practices for controlling or restricting the effects of violent incidents on the employees‘ safety must be presented.

A new Non-Discrimination Act was adopted in 2004 with the purpose of implementing the EU Race Discrimination Directive and the General Framework Directive on Equal Treatment. The Act covers prohibited grounds for discrimination other than sex (race, ethnic origin, disability, religion etc.) and contain also a provision on harassment due to such grounds. Harassment means the deliberate or de facto infringement of the dignity and integrity of a person or group of people by the creation of an intimidating, hostile, degrading, humiliating or offensive environment. France Germany The German legal system does not provide specific statutory regulation on harassment, violence, bullying etc. in relation to work. There is no general statutory provision that prohibits harassment at the workplace and determines legal consequences like a punitive fine, imprisonment, reinstatement or the award of damages. Necessarily, this corresponds to the absence of a general statutory definition of the legal term ‖harassment‖.

148 continuous violation of personal rights, reputation or physical health (BAG, 25.10.2007, 8 AZR 593/06).

Hungary In Hungary the Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities (hereinafter Equal Treatment Act) gives a definition of harassment: Harassment is a conduct of sexual or other nature violating human dignity related to the relevant person‘s characteristics defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around the particular person.

The Act IV of 1978 on the Criminal Code also regulates the harassment. It says:

Any person who commits the act of harassment:

a) against his/her former spouse or domestic partner,

b) against a person under his/her care, custody, supervision or treatment,

shall be punishable by imprisonment for up to two years, community service work, or a fine in the cases described in Subsection (1), or by imprisonment for up to three years for the felony offense described under Subsection (2) (Article 176/A.).

Iceland Act on working environment, health and safety in workplaces No. 46/1980 Article 38 (e) After receiving the comments of the Board of the Administration of Occupational Safety and Health, the Minister of Social Affairs shall issue further regulations on which provisions shall be complied with as concerns the organisation, arrangement and execution of jobs, such as: on measures against bullying in workplaces. (amended by Act No. 68/2003)

149 conflict of interest that may arise between employer/manager and employee or two or more employees does not apply, as such difference of opinion or conflict of interest does not lead to the behaviour described above.

The protection from harassment applies regardless of the reason for the harassment. Nevertheless in Art. 17 of Act No. 96/2000 on Equal Status and Equal Rights of Women and Men there is a special article about sexual harassment. Ireland EAT and Ireland Lab Harassment is defined by the Employment Equality Acts 1998 and 2004 as follows: - (a) In this section — (i) References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) References to sexual harassment are to any form of unwanted verbal, non- verbal or physical conduct of a sexual nature (b) Being conduct, which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Bullying is defined by a Code of Practice (Code of Practice on Procedures for Addressing Bullying in the workplace): -

―Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual‘s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.‖ Italy In the Italian legal system protection from harassment is inserted in protection against discrimination, and it is applied regardless of the reason for the harassment. Protection against discrimination at work for sex, race, language, religion or political views, moreover, is given by Italian workers’ statute (art. 15).

Lithuania In accordance with the Lithuanian law equal treatment means implementation of the human rights, which are laid down in international documents on human and citizens‘ rights and in the laws of the Republic of Lithuania, regardless of the age, sexual orientation, disability, racial or ethnic origin, religion, beliefs and other grounds established in the international agreements or laws of the Republic of Lithuania. Lux Our Labour Law Code (Code du Travail) deals with sexual harassment in its articles L. 245-1 to L. 245-8 and, more generally, with the equality of treatment on the workplace by respect of the principle of non-discrimination on the grounds of religion or conviction, disability, age, sexual orientation, race or membership of an ethnic group, in its articles L. 251-1 to L. 254-1, introduced by the Act of November 28th 2006 on equality of treatment on the workplace, slightly modified on points of detail by the law of May 13th 2008 on the equality of treatment between men and women. Malta Protection against harassment is granted by the Constitution, the Industrial Relations Act of 1977, The Equal Opportunities (Persons with Disability) Act of 2000, The Employment and Industrial Relations Act of 2002 and The Equality for Men and Women Act 2003. Netherlands The terminology used in legal documents and policy instruments varies according to the context. The Working Environment Act (Arbeidsomstandighedenwet 2007) sums up a list of factors which can lead to stress at work: sexual harassment („seksuele

150 intimidatie‟, which refers to the intimidating aspect of sexual harassment), aggression and violence, harassment („pesten‟ which can be described as an intimidating form of teasing or bullying without application of violence), and high work pressure („werkdruk‟ which clearly falls outside the scope of harassment). In other texts different (combinations of) terms are used such as: ‗undesired conduct‘ (‗ongewenst gedrag‟), ‗violence and harassment‘ („geweld en pesterijen‟), ‗aggression and violence‘ (agressie en geweld).

Norway The Working Environment Act (WEA) § 4-3 Prohibition against all sorts of harassment at work. 2) WEA § 13-1

Prohibition against harassment based on political views, membership in trade union, sexual orientation, disablement and age. These types of harassment are considered discriminating.

3) The Act relating to Sex Equality (ASE) § 8a) Prohibition against harassment based on sex, including sexual harassment.

4) The Act relating to Non-Discrimination (AND) § 5. Prohibition against harassment based on ethnology, national origin, descent, colour of skin, language, religion and beliefs.

The prohibition against harassment in the WEA § 4-3 is a part of the employer‘s obligation to ensure that the work is arranged in a way that ―the employees‘ integrity and dignity are attended‖; The working environment must be ―fully secured‖.

United Kingdom The definitions of harassment are found in the equality legislation, which addresses discrimination on grounds of sex, race, disability, religion or belief, sexual orientation and age. The provisions are not identical. Collective agreements are not used as a means of interpretation of harassment. Codes of practice from certain recognised bodies do provide guidance e.g. Department of Trade and Industry (sex discrimination), Arbitration and Conciliation Service (bullying and harassment). In cases of sex and race discrimination tribunals are required to take into account relevant codes of practice provided by the relevant commissions (which are now unified as the Commission for Equality and Human Rights (‖CEHR‖)).

1.2. Does protection from harassment apply regardless of the reason for the harassment, or is it limited to specific categories of discrimination (sex, race, religion, disability etc.)?

Austria The protection from harassment is limited to specific categories of discrimination: sex, gender, ethnic origin, religion or belief, age, sexual orientation and disability. Belgium The Royal decrees of the 18th of September 1992 and of the 9th of March 1995, provide protection against sexual harassment in the workplace, with the law to the protection against violence and moral or sexual harassment at work, of the 11th of June 2002.

Czech Republic (1) Employers shall safeguard equal treatment for all employees as regards employees‘ working conditions, remuneration for work and other emoluments in cash and in kind (of monetary value), vocational training and opportunities for career advancement (promotion). (2) Any form of discrimination in labor relations is prohibited. The Antidiscrimination

151 Act shall regulate the terms, such as direct discrimination, indirect discrimination, harassment, sexual harassment, persecution, an instruction to discriminate and/or incitement to discrimination, and the instances in which different treatment is permissible. (3) Discrimination shall not mean a different treatment where, owing to the nature of occupational activities, such a different treatment constitutes a substantial requirement necessary for the performance of work; the purpose followed under this exemption must be legitimate and the requirement must be adequate. Discrimination shall further not be deemed to occur when an employer takes a measure the purpose of which is substantiated by the prevention or balancing of any disadvantage resulting from an individual‘s belonging to any group defined by any reason specified in the Antidiscrimination Act. Demark Estonia In connection with Estonian Republic joining into European Union in 01.05.2004, the Employment Contracts Act of Estonia has been amended to incorporate relevant European Unions directives. For example in paragraph 10 in Employment Contracts Act of Estonia definitions for direct and indirect discrimination and harassment are set out.

Finland Sec. 28 of the Occupational Health and Safety Act 2002 is a general provision concerning the employer‘s duty to take measures against harassment and other inappropriate treatment of an employee occurring at work and causing hazards or risks to the employee‘s health. The employer shall by available means take measures for remedying the situation. The provision applies regardless of the reason for the inappropriate action and aims at protecting both the physical and psychological wellbeing of employees.

France Germany The transposition of the EU Directives 2000/43/EC and 2000/78/EC into national law in the year 2006 has created a specific statutory definition of harassment in the context of discrimination: Art. 3 of the General Equal Treatment Act (Allgemei-nes Gleichbehandlungsgesetz - AGG) defines harassment to be a form of discrimination, when unwanted conduct related to race, ethnic origin, sex, religion or belief, disability, age or sexual identity takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. This definition is applicable only in cases of discrimination covered by the Directives 2000/43/EC and 2000/78/EC. Hungary Article 8. Article 8 regulates the direct discrimination. It says: All dispositions as a result of which a person or a group is treated or would be Treated less favourably than another person or group in a comparable situation because of His/her: a) Sex, b) Racial origin, c) Colour, d) Nationality, e) Origin of national or ethnic minority, f) Mother tongue, g) Disability, h) State of health, I) Religious or ideological conviction, j) Political or other opinion, k) Family status, l) Motherhood (pregnancy) or fatherhood, m) Sexual orientation, n) Sexual identity,

152 o) Age, p) Social origin, q) Financial status, r) Part-time nature or definite term of the employment relationship or other relationship aimed At work, s) Membership in an organisation representing employees‘ interests, t) Any other status, characteristic feature or attribute (hereinafter collectively: characteristics) are considered direct discrimination.

Iceland Sexual harassment constitutes sexual behaviour that is unreasonable and/or insulting and continued in spite of a clear indication that this behaviour is unwelcome. Sexual harassment can be physical, oral or symbolic. One event may be considered sexual harassment if it is serious. If a superior is charged with sexual harassment, he/she shall be deemed incompetent to take decisions on the working conditions of the plaintiff during the investigation of the case and a higher superior shall take decisions regarding the plaintiff.

Ireland Lab & Ireland EAT A worker can only have a cause of action in anti-discrimination law if the harassment is on one of the nine grounds proscribed by the Employment Equality Act 1998 –2004.

In the case of bullying the reason is not decisive. However, the Code of Practice is a ―soft law‖ provision and it does not in itself provide legally enforceable remedies. Complaints can be brought before a Rights Commissioner and on appeal to the Labour Court, which can make non-binding recommendations.

However, a claim for constructive dismissal on grounds of bullying, harassment or sexual harassment under the Unfair Dismissals Act, 1977 arises regardless of the reason for the harassment.

A cause of action may arise for personal injury in tort where bullying gives rise to work related stress to a degree, which amounts to a psychiatric injury. A failure to protect workers from workplace bullying may also amount to a criminal offence under the Safety Health and Welfare at Work Act 2005.

Italy Protection from harassment is protection against discrimination, and it is applied regardless of the reason for the harassment. Protection against discrimination at work covers sex, race language, religion or political views, Lithuania See above. Lux Until the newly adopted law of November 28th 2006 on equality of treatment, such as modified, transposing the Directives 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, coming into legal force on January 1st 2007, the notion on moral harassment (― mobbing ― or bullying) was not defined in Luxemburg‘s Labour law. Malta Protection from harassment is limited to specific categories of discrimination: age, sex, religion, disability etc. Netherlands The Working Environment Act offers protection against harassment regardless of the reason for the harassment. In addition, there are other legal provisions, which offer

153 specific protection against discrimination, including discriminating forms of harassment. Norway The Labour Inspectorate often uses this definition: ―It is harassment when one or several individuals repeatedly, during a period of time, are exposed to negative actions (for example unwanted sexual attention, annoying behaviour, freezing somebody out, deprive of tasks or hurtful cheeks and teasing) from one or several other individuals. Further, it should be an imbalance in the condition of strength; the one being harassed must have difficulties defending him. We are not speaking of harassment when two approximately ―equal‖ persons come into conflict, or it concerns only one single episode of conflict.‖

By ―sexual harassment‖, in the Act relating to Sex Equality (ASE) means: ―Unwanted sexual attention which is annoying to the person affected”. United Kingdom Each equality statute or regulation deals with harassment under the specific heading of the legislation e.g. disability, race. In addition the Protection from Harassment Act 1997 (―PHA‖) provides legal redress without reference to any specific category of discrimination. Non-statutory claims may also be brought in negligence for breach of the employer‘s duty of care to provide a safe system of work. Claims may also be brought for breach of contract for breach of the same duty and of the duties to provide reasonable support to employees in their duties without harassment from colleagues and of the implied duty of trust and confidence.

1.3. Does the right apply only to employees or also to other categories of workers, such as agency workers, economically dependent workers, independent contractors?

Austria The right applies to employees, but also to agency workers and economically dependent workers. The right also applies to independent contractors with regard to the access to self-employment. Yes, the worker is protected against harassment by third parties too. Belgium The Act of the 11th of June 2002, covers a wide range of situations. In some areas, the acts covered involve relations between individuals working in the same company or workplace. In others, especially where physical violence is concerned, they will more often involve relations between workers and users, clients or simply those with access to the workplace. The Act‘s personal scope is also very wide. It applies to all workers, including the civil service, some school and tertiary education students, voluntary workers working under someone‘s authority. It also applies, to a limited degree, to domestic staff. Czech Republic The requirement of equal treatment and prohibition of discrimination concerns all types of employment, regardless of the name of such employment. From the practical point of view, it does not matter if the prohibition laid down in the Labor Code applies to different professional groups directly, secondarily, or if it is defined under the same name in an Act regulating their position (Civil Servant Service Act). Anybody may be punished for discrimination, even persons who are not employees or employers. Depending on the seriousness of the misconduct, a person may be punished either for an administrative infraction pursuant to the Administrative Infraction Act (fine not exceeding CZK 5,000) or for a criminal offense pursuant to the Criminal Code.

154 Demark Finland All three Acts mentioned above apply to workers who are in an employment relationship, including those employed by a temporary employment agency, and workers employed in a relationship governed by public law (civil servants, municipal workers etc.). Furthermore, the Equal Treatment Act applies to persons who are in a subordinate or dependent position similar to that of a worker. Otherwise the Finnish labour law system does not recognise a third category between workers and non-workers. Estonia Convention on the Protection of Human Rights and Fundamental Freedoms is in force in Estonia, who as a consequence must ensure protection of human rights. France Germany Protection against harassment is not limited to the categories of race, ethnic origin, sex, age, religious belief, disability or sexual identity. It applies regardless of the reason for the harassment and benefits employees as well as all other categories of workers, including independent contractors. Under German law any person is protected against harassment, i.e. irrespective of the existence of an employment contract between the offender and the victim. Therefore, the worker is also protected against harassment by third parties (e.g. clients, pupils). Hungary The Equal Treatment Act rules that employers shall observe the principle of equal treatment (and the prohibit of harassment) in respect of the employment relationships, and persons entitled to give instructions also shall observe the principle of equal treatment (and the prohibit of harassment) in respect of other relationships aimed at work and relationships directly related thereto (Article 5, d) point). Therefore the rule applied for not just the employees but also all kind of workers. But there is a lack of the definition: it does not regulate the harassment is committed by not the employer but the other employee. For this situation the Labour Code contains general regulation. It says: Employees shall cooperate with their co-workers and perform work, and otherwise proceed in a manner without endangering the health and safety of others, without disturbing their work and causing financial detriment or damaging their reputation. Employers shall ensure proper conditions for occupational safety and health in observation of the provisions pertaining thereto. Employers shall organize work so as to allow the employees to exercise the rights and fulfil the obligations originating from their employment relationship; Iceland The protection of the law/regulation against harassment applies to all employees. There is a slight distinction made between physical, psychological and sexual harassment. As already mentioned, there is a special protection against sexual harassment in Act No. 96/2000 on Equal Status and Equal Rights of Women and Men. According to Article 199 of the Icelandic penal code No. 19/1940 sexual harrassment is punishable be imprisonment up to 2 years. Ireland Lab & Ireland EAT The Employment Equality Acts 1998 and 2004 apply to ―employees‖. That term is broadly defined and includes agency workers and a ―person who, under a contract, provides services personally to another‖. It includes persons employed on a contract of service and those employed on a contract for services. A similar definition applies under the Industrial Relations Acts 1946 to 2004 under which bullying claims are normally processed. This broad definition of the term ―employee‖ applies for the purpose of these statutes only. Normally a person employed on a contract for services is excluded from the scope of employment rights legislation. A person employed on a contract for services is not covered by the Unfair Dismissals Acts 1997 to 2001.

Under the Unfair Dismissals Acts 1977 to 2001 a person employed through an employment agency is deemed to be the employee of the person for whom the service is being provided viz the end user. Italy Protection against discrimination applies to all categories of workers. All law definitions of harassment are objective.

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Lithuania The provisions of the Lithuanian law on equal treatment shall apply to all spheres of social relations except of family and private life. Lux As the sexual harassment is concerned, the protection from harassment applies to all employees as defined in article L. 121-1 of the Labour Law Code, i.e. all persons linked to an employee by a work contract including agency workers, economically dependent workers, and to trainees, pupils or students occupied during school holidays. Malta The right to protection from harassment applies to all categories of workers. Netherlands The protection of the Working Environment Act applies to; Employees and public servants, temporary agency workers, certain categories of independent contractors, who perform their work in someone else‘s home The scope of antidiscrimination legislation is broader, covering (inter alia) all types of workers. Norway According to the preparatory works to the WEA, the protection against harassment in WEA § 4-3 includes every form of harassment. Consequently all types of harassment are protected in the field of work. Harassment based on political views, membership in trade union, sexual orientation, disablement and age are explicitly mentioned in the discrimination-chapter in the WEA.

Further, sexual harassment is explicitly mentioned in the Act relating to Sex Equality § 8A and harassment based on ethnology, national origin, descent, colour of skin, language, religion and beliefs are explicitly mentioned in the Act relating to Non- Discrimination § 5. The rights in WEA only apply to employees. The rights in The Act relating to Sex Equality and the Act relating to Non-Discrimination apply to each and every citizen.

United Kingdom Applicants for employment are covered by equality legislation. In addition to employees, protection extends to individuals who have contracted personally to do work. It also covers contract workers i.e. supplied under a contract with an employer to do work for a third party. Categories of individual are covered to whom employment protection does not generally apply e.g. crown servants, members of the armed forces (subject to certain limitations). Claims may also be brought against certain bodies where there is no working relationship e.g. trade organisations, vocational training providers, qualification bodies such as the Law Society or General Medical Council by holders of or applicants for the qualification. Former employees may also bring claims if they arise out of and are closely connected with the employment relationship.

1.4. Does the definition contain subjective elements i.e. does it have to be intentional and/or is it based on the perception of the victim or is the definition objective (i.e. not necessarily intentional and not based on the perception of the victim?)

Austria The definition is mainly based on the objective effect of harassment and on the subjective perception of the victim. The employer‘s intention is not relevant in the case of direct harassment by the employer, but the intention of the employer is relevant in the case of harassment by third parties. Then the definition of harassment depends on the intentional omission by the employer who fails to take appropriate remedial action against harassment. Belgium The definition of the harassment is the following: harassment is a conduct of sexual or other nature violating human dignity related to the relevant person‘s characteristics defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around the particular person. So the definition contains some subjective element: first of all the ―purpose‖, but at the same time it can be substituted with the ―effect‖ which assumes the perception of the victim. The definition of harassment regulated by the Criminal Code also requires the intent.

156 Czech Republic Although the conduct of an employer is generally perceived very intensely, the conclusion about whether it is discriminative or not is dependent on the subjective judgment of the victim. On the other hand, not even the most specific definitions, which could make it possible to ―objectively‖ and mechanically classify a case, are enough to judge it. A case must always undergo an independent examination considering its individual and specific circumstances. Demark Estonia Currently Estonian parliament ―Riigikogu― processes the draft of the equal treatment law, in which the definition of discrimination more detailed.

Finland The first express provision on harassment in Finland was introduced in 1995 in the Equal Treatment Act. It deals with sexual harassment and defines such action as discrimination based on sex.

The regulation has later in 2005 been complemented so as to cover also ―other derangement related to sex‖. Also giving an order or instruction to commit such harassment or derangement is equated with discrimination (Sec. 7(5) of the Act).

France Germany The German concept of harassment requires objective and subjective elements: The offender‘s conduct must cause the violation. Furthermore, the harassment must be attributable to the offender‘s fault (either malicious/conditional intent or negligence). E.g. a kiss in the context of a love affair does not meet the subjective criteria of harassment. Neither is the definition based on the unilateral perception of the victim. Hungary No. Every conduct of sexual or other nature that violates human dignity is harassment.

Iceland The definition is objective. Ireland Lab & Ireland EAT The definition of harassment and sexual harassment is subjective in nature in that it refers to conduct which has the ―purpose or effect etc‖. Thus if the conduct has the effect of violating a persons dignity it is harassment properly so called. This suggests a subjective element objectively applied. In the case of bullying the definition refers to conduct ―which could reasonably be regarded as undermining the individuals rights to dignity etc…‖ This imports an objective dimension to the definition. Italy All definitions of harassment are objective. Lithuania The definition of harassment contains subjective elements as harassment is deemed to be undesirable conduct (discrimination), when on the basis of age, sexual orientation, disability, racial or ethnic origin, religion or beliefs one strives to violate or violates the dignity of a person and strives to create or creates an intimidating, hostile and degrading or offensive environment. Lux The definition of sexual harassment presumes the intentional element of the behavior of sexual harassment when one of the three following conditions is fulfilled: - the behavior is abusive and offensive for the person being the victim – the fact that a person refuses or accepts such a behavior from the employer, an employee, a client or a supplier is used explicitly or implicitly as the basis of a decision affecting the rights of that person in the fields of professional training, employment, promotion, salary or of all other decision concerning the employment – such a behavior creates a climate of intimidation, hostility or humiliation towards the victim.

157 Since the adoption of the modified law of November 28th 2006 the intentional element of a moral harassment is presumed when: - a person is treated less favorable than another in a comparable situation on the basis of one of the motives related to religion or conviction, disability, age, sexual orientation, race or membership, supposed or real la, of an ethnic group or - an indirect discrimination is produced when a disposition, a criterion or an apparently neutral practice is likely to cause a particular disadvantage for persons of a religion or a conviction, of a certain handicap, of a certain age, sexual orientation, race or membership, supposed or real, of an ethnic group with respect to another person. Malta The definition must be intentional and not based on the perception of the victim and it is an objective definition. Netherlands The protection of the Working Environment Act is related to stress factors, which appears to involve subjective element on the side of the worker. The term „pesten‟ (a form of harassment) implies an intention to do harm. But the term „intimidation‟ (intimidating harassment, for example related to sex, religion, race) does not necessarily require such intention, for example in the case of rude remarks and discriminating jokes. Norway The definitions, both in the WEAs and the ASEs preparatory work contain subjective elements. The preparatory works of the WEA says that the term ―unwanted‖ underlines that the offended employee’s subjective experience of the situation can be decisive whether or not the actions are to be defined as harassment. The underlying purpose of the action is also relevant in the assessment. The preparatory works of the ASE thorough discusses sexual harassment. The conclusion is that appraising what to be considered ―unwanted sexual attention‖ from objective criteria is difficult. The Ministry says: ―whether the sexual attention is unwanted or not, should depend on each and every individual‘s opinion about it. The one exercising the attention must however get the chance to be aware of the attention being unwanted. If he or she then continues, the action must be considered as sexual harassment. The WEA says: ―harassment and other improper behaviour‖. The preparatory works says that this covers all sorts of harassment United Kingdom Claims brought under the equality legislation may be based on the purpose of the unwanted conduct or on its effect. In the latter case the perception of the victim (the subjective element) and the reasonableness of that perception (the objective element) are taken into account. The test under the PHA is objective. Similarly a claim in negligence applies an objective test.

1.5. Does the law preventing harassment have any impact on the human right of freedom of expression?

Austria The human right of freedom of expression is not unlimited. The human right of freedom of expression of one person ends where the human right of freedom from harassment of another person begins. Belgium - Czech Republic - Demark Estonia In public (administrative) law is prohibition on discrimination also regulated - for example in codes of court procedures (Code of Civil Procedure, Code of Administrative Court Procedure and Code of Criminal Procedure). Offences Against Equality are imposed in Penal Code (Penal Code §-s 151- 153).

Finland -

158 France Germany Even though freedom of expression can come into conflict with other human rights, the definition of harassment does not allow for balancing such legally protected interests. Once behaviour meets the criteria of harassment as defined above, such violation of the victim‘s individual rights cannot be justified with reference to the constitutional right to freedom of expression. As a result, the law preventing harassment does not have any impact on the human right of freedom of expression. Hungary In the aspect of the committer it depends all the circumstances that his constitutional right for freedom of expression is stronger or the victim's right against the harassment. Iceland The harassment does not have any impact of the human right of freedom of expression according to the definition in Icelandic law. In regulation No. 1000/2004 on measures against harassment at a workplace, it is stated that the definition of harassment does not include difference of opinion or conflict of interest between employees and an employer or between two or more employees. Ireland Lab & Ireland EAT No. Italy No. Lithuania The law provides protection of freedom of expression by prohibition to discriminate on the grounds of religion and beliefs. Lux Not applicable Malta The Law preventing harassment limits the human right of freedom of expression in that sense. Netherlands It is conceivable that the protection against verbal harassment involves a certain restriction of the exercise of the freedom of expression. Norway The prohibition against harassment prevails, regardless of the remark being protected by the freedom of expression or not. Harassment is in other words never considered legal.

United Kingdom The Human Rights Act 1998 requires courts and tribunals to interpret national legislation in conformity with Convention rights. Article 10 has been considered in relation to certain harassment claims – for example, by a disgruntled applicant for planning permission who subjected a local politician involved in the refusal to aircraft flying over her home trailing banners with insulting messages. He claimed it was a denial of his freedom of expression for the court to uphold the politician‘s harassment claim based on Article 8 (physical or psychological integrity).

1.6. Is a distinction made between (for example) physical, psychological and sexual harassment? Is the worker also protected against harassment by third parties (clients, pupils)?

Austria No, there is no distinction made. Belgium The Act includes all the new provisions brought in by the welfare at work Act of the 4th of August 1996.

That means that all the preventive arrangements redefined when the Framework Directive‘s provisions were taken over into Belgian law apply to psychological harassment, as well as sexual harassment, and prevention of violence. Czech Republic No. Demark Estonia The incitement of national, racial, religious or political hatred, violence or discrimination shall, by law, be prohibited and punishable. The incitement of hatred, violence or discrimination between social strata shall, by law, also be prohibited and punishable.

Finland The general idea is that an action envisaged in the provisions mentioned above

159 becomes prohibited harassment as soon as the harasser is made aware that his/her action is undesirable to the victim. In clear cases and certain other circumstances the victim‘s express negative reaction is, however, not needed.

The rules on harassment are applicable no matter who the harasser is: a fellow worker, the employer‘s representative or a third party.

France Germany The definition of harassment under German law covers different kinds of harassment such as physical, psychological and sexual harassment, depending on the conduct shown by the offender and the harm caused to the victim. Art. 3 of the General Equal Treatment Act again provides a statutory definition of the term ―sexual harassment‖ within the specific context of discrimination. According to the recognised general definition, sexual harassment shall be deemed to be a form of discrimination, where unwanted conduct of a sexual nature, including sexual acts or requests to engage in such acts, physical touching of a sexual nature, comments or remarks of a sexual nature, or the unwanted showing or visible display of pornographic images, has the purpose or effect of violating the dignity of the affected person, in particular by creating an intimidating, hostile, degrading, humiliating or offensive environment. Here as well, the term ―environment‖ illustrates the systematic and continuous proceeding of the offender – one of the key components of the German understanding of ―Mobbing‖, i.e. harassment. Hungary No, such kind of protection is not regulated. However it is a very current problem in Hungary nowadays, there is lots of news about pupils who harass the teachers.

As we previously mentioned the law does not regulate the harassment is committed by not the employer but the other employee. For this situation the Labour Code contains general regulation. It says: Employees shall cooperate with their co-workers and perform work, and otherwise proceed in a manner without endangering the health and safety of others, without disturbing their work and causing financial detriment or damaging their reputation. Employers shall ensure proper conditions for occupational safety and health in observation of the provisions pertaining thereto. Employers shall organize work so as to allow the employees to exercise the rights and fulfil the obligations originating from their employment relationship;

Iceland Art. 17 Sexual harassment Employers and directors of institutions and social activities shall take special measures to prevent employees, students and clients from being subjected to sexual harassment in the work place, within institutions, during social activities or within schools. Ireland Lab & Ireland EAT The obligation imposed on an employer is to provide a workplace free from harassment and bullying. In the case of harassment and sexual harassment an employer is vicariously liable for harassment committed by a client, customer or business associate. It is, however a full defence for the employer to show that he / she took such steps as are reasonably practical to prevent the harassment. The question of harassment of teachers in a school by pupils is not expressly dealt with in equality legislation. However the Labour Court has held that a Board of Management’s failure to protect female teachers from sexual harassment by male students constituted discrimination against them on the gender ground.

Italy Yes. After implementation of EC directive 2002/73, in the Italian labour law there is a distinction between physical, psychological and sexual harassment (see legislative act n. 145 of 30 May 2005). Is the worker also protected against harassment by third parties (clients, pupils)? Not directly. The employer is obliged to protect men and women at work against all risks.

160 Lithuania There is no special definition for physical and psychological harassment while the Lithuanian law of on equal opportunities for women and men sexual harassment stipulates as any form of unwanted and insulting verbal, written or physical conduct of a sexual nature with a person with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, humiliating or offensive environment. Lux The behavior of sexual harassment can be physical verbal and non-verbal. The employer has the duty to manage that any sexual harassment of which he is aware of has to cease immediately, whether the behavior of sexual harassment does emanate from the employer himself or from another hierarchical superior, from a work colleague or from an exterior person having professional relations with the employer such as clients or suppliers. The same principles apply to moral harassment. Malta A distinction is made between the different types of harassment. The worker is also protected against harassment by third parties. Netherlands A distinction is made between physical harassment (violence) and psychological harassment („pesten‟) but this distinction is not sharp (for example ‗aggression‘ can stop very short of becoming actually violent), neither does it lead to different legal consequences. ‗Intimidation‘ is often very near (or even equal) to discrimination. Equal Treatment legislation offers special protection against discriminating forms of intimidation.

The Working Environment Act includes protection of workers against harassment by third parties such as clients and pupils. Norway The WEA also protect the employee against third parties; The employer is obliged to ensure the work being arranged in a way that ―the employees‘ integrity and dignity are attended‖ and the working environment in general to be ―fully secured‖; According to the preparatory works this also includes parties that represent a ―risk‖ for the employee. Examples: customers, clients, users etc.

United Kingdom In claims brought under equality legislation no distinction is made between physical and psychological harassment as part of a claim. It is a matter of the successful claimant proving that his/her loss arises naturally and directly from the act of harassment. Compensation for personal injury (pain and suffering) may include physical and psychiatric elements. In addition employment tribunals may award compensation for injury to feelings. Stricter criteria are applied in breach of contract or negligence claims.

2. Regulatory framework (national)

2.1 Statutory regulations

Give a brief overview of the relevant legislation concerning harassment and violence at work. If possible, make a distinction between public (administrative) law, private law, and criminal law.

Include in your description the protection against victimisation (protection of a worker who protests or appeals against harassment).

161 Austria You can find the relevant legislation concerning harassment and violence at work and the protection against victimisation in the following Acts: - Equal Treatment Act (―Gleichbehandlungsgesetz‖ (GlBG), BGBl I 2004/66; for the private sector) - Federal Equal Treatment Act (―Bundes-Gleichbehandlungsgesetz‖ (B-GlBG), BGBl 1993/100; for the civil service) (see 5.: minimum financial compensation of 720 Euros in harassment cases on all relevant grounds) - Employment of Disabled Persons Act (―Behinderteneinstellungsgesetz‖ (BEinstG), BGBl 1970/22)

This legislation follows closely the definitions of harassment and victimisation in the Directives 2000/43/EC, 2000/78/EC and 2002/73/EC.

You can also find a penalty provision ―sexual harassment‖ in the Austrian Penal Code (―Strafgesetzbuch‖ (StGB), BGBl 1974/10). Belgium The General Antidiscrimination Act of the 25th of June 2003 is a complement to the Act of the 30th of July 1981, criminalizing certain acts, inspired by racism or xenophobia.

Thus, this legislation protects only against certain forms of discrimination based on race, colour, ascendancy or nationality or ethnic origin.

It does not protect against discrimination based on other grounds.

Therefore, a person who is discriminated against on the ground of her disability could not rely upon, the criminal liability provided for in article 2bis of the Act of The 30th of July 1981 in any conceivable way.

So, the protection from discrimination of a person with a disability in the fields covered by the Framework Directive 2000/78/EC is essentially based on the Act of the 25th of February 2003, the main legislative initiative which has been taken in Belgium to implement directives 2000/43/EC and 2000/78/EC.

The General Antidiscrimination Act of the 25th of February 2003, identifies harassment as a form of discrimination, and defines the notion in strict conformity with the Directives.

Article 442bis of the Penal Code, introduced by the Act of the 30th of October 1998, already criminalises harassment in general.

Harassment in this context is not defined but is understood to cover importuning a person in a manner, which is irritating for the latter and is not restricted to sexual

162 harassment.

Harassing behaviour does not have to be of a repetitive nature, but it must seriously affect the tranquillity of the person concerned and must be voluntary on the part of the harasser.

The inclusion of the prohibition of harassment in the Act of the 25th of February 2003 would ensure that a civil action might be lodged against the harasser, with the possibility of a shift of the burden of proof under article 19 of the Act. However, article 32undecies of the Act of the 4th of August 1996, inserted in that Law by the Act of the 11th of June 2002, provides in similar terms for such a reversal of the burden of proof.

Article 32undecies of the Act of the 4th of August 1996, as modified by the Act of the 11th of June 2002, inserting a new chapter Vbis in that Act, states that:―where a person having a legal interest establish before the competent court facts from which it may be presumed that there has been violence or moral or sexual harassment in employment, it shall be for the respondent to prove that there has been no such violence or moral or sexual harassment committed‖

As measure to protect complainants from victimisation by employers, an employer whose worker has filed a valid complaint may not terminate the employment or unilaterally alter the working conditions of the worker other than for reasons unrelated to this complaint. This protection also applies to other workers, such as witnesses, involved in a dispute. Czech Republic Parties to legal relations under Act No. 262/2006 Coll., the Labor Code are: a) The Czech Republic represented by the Ministry and labor offices; b) Individuals (natural persons) having legal capacity to be an employee and shall be understood to be citizens of the Czech Republic and, under the same conditions, foreigners (i.e. foreign nationals, aliens) who meet the conditions for being employed pursuant to this Act; c) Employers; an employer shall also be a branch (an organizational component) of either a foreign legal entity or of a foreigner provided that such branch is authorized to carry on business activity in the Czech Republic under other statutory provisions; d) Legal entities and individuals and other entities (agencies) under other statutory provisions, exercising activities pursuant to this Act. (2) A citizen of another Member State of the European Union (hereafter referred to as ―a citizen of the European Union‖ or ―a EU citizen‖) and his family members shall have equal legal status (position) as a Czech citizen in legal relations regulated by this Act, unless this Act provides for otherwise. (3) Family members of a citizen of the Czech Republic who are not nationals of the Czech Republic or any other Member State of the European Union shall have equal legal status (position) as a Czech citizen in legal relations regulated by this Act, unless this Act provides for otherwise.

163

There is no institution that would deal only with equal treatment issues. It is evident from the above overview that a significant part, within their general competence, is played by labor offices, regional labor inspectorates and courts; it results from the nature of the matter that these issues may be also dealt with by unions, employee councils etc.

In the case of criminal punishment, it is possible to engage the mediation service. Mediation is an out-of-court deliberation aiming to resolve the dispute between the accused and the injured and an activity striving to settle the conflict situation, which is carried out in relation to criminal proceedings. Mediation may be performed only with express consent of the accused and the injured.

Demark Estonia Prohibited is physical and psychological violence. In accordance to Public Service Act provisions for prohibitions on Unlawful discrimination (paragraph 10 of Estonian Employment Contracts Act) against employees applies to public servants. In public (administrative) law is prohibition on discrimination also regulated - for example in codes of court procedures (Code of Civil Procedure, Code of Administrative Court Procedure and Code of Criminal Procedure)? Offences Against Equality are imposed in Penal Code (Penal Code §-s 151- 153).

Finland An overview of the relevant legislation concerning harassment and violence at work is given above. A distinction between public (administrative) law and private law does not seem relevant here.

Victimisation is defined and treated separately both in the Equal Treatment Act and in the Non-Discrimination Act. Under the provisions in question, no one may be placed in an unfavourable position or treated in such a way that they suffer adverse consequences, such as termination of an employment relationship, because of having complained or taken action to safeguard equality. The sanctions for victimisation are the same as for other forms of discrimination.

France Germany Due to the absence of specific statutory regulation on harassment at work (out of the context of discrimination), German courts resort to general statutory provisions of private or criminal law in order to be able to deal with the social phenomenon of harassment. All such statutory regulation can ultimately be traced back to the German Basic Constitutional Law (Grundgesetz, GG) and its basic rights insofar as the harasser affects the victim‘s basic rights to personality (Art. 2 sec. 1, Art. 1 sec. 1 GG) and to physical inviolability (Art. 2 sec. 2 GG).

164 obligated to take all actions necessary to protect employees from sexual harassment, including preventive measures. If any employee violates the prohibition of discrimination, the employer shall in each case take appropriate, necessary and reasonable action to prevent any further discrimination, e.g. by warning, relocating, transferring or dismissing the employee (Art. 12 sec. 3 AGG).

The existence of harassment at work may also have an impact on proceedings of unfair dismissal under Art. 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz, KSchG), once the dismissed employee justifies certain misconduct or a long period of illness by claiming to be a victim of harassment.

German labour legislation provides specific protection against victimisation: Under Art. 612a of the German Civil Code (Bürgerliches Gesetzbuch, BGB), an employer may not discriminate against an employee for exercising his legal rights. Art. 16 of the General Equal Treatment Act contain a similar prohibition of disciplinary actions in the specific context of discriminatory harassment. Thus, any action by an employer against an employee in retaliation for initiating complaint proceedings against harassment is void under German law. Hungary The Hungarian Constitution (Act XX of 1949.) States that in the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall be arbitrarily denied of these rights. No one shall be subject to torture or to cruel, inhuman or humiliating treatment or punishment (Article 54. §). The Republic of Hungary shall respect the human rights and civil rights of all persons in the country without discrimination on the basis of race, color, gender, language, religion, political or other opinion, national or social origins, financial situation, birth or on any other grounds whatsoever.The law shall provide for strict punishment of discrimination. The Republic of Hungary shall endeavor to implement equal rights for everyone through measures that create fair opportunities for all (Article 70/A.§). The Civil Code states that the breach of the equal treatment constitutes the breach of the victim's personality rights. The victim is entitled for compensation and other remedies.

165 The Labour Code also regulates the equal treatment. It says: In connection with employment relations the principle of equal treatment must be strictly observed. Any consequences of the breach of the principle of equal treatment shall be properly remedied; the remedy shall not result in any violation of or harm to the rights of another worker. This regulation of the Labour Code is applicable to the civil and public servants' relationship.

The Equal Treatment Act regulates both the public and private law. The Act prohibits harassment, unlawful segregation, and retribution.

Unlawful segregation is a conduct that separates individuals or groups of individuals from other individuals or groups of individuals in a similar situation on the basis of their characteristics as defined in Article 8, without any law expressly allowing it.

The Act IV of 1978 on the Criminal Code also regulates the harassment. It says:

Any person who commits the act of harassment:

a) against his/her former spouse or domestic partner,

b) against a person under his/her care, custody, supervision or treatment,

Iceland The Icelandic labour system is mainly based on collective agreements. Law stipulates

166 some basic principles concerning the worker's rights and duties, whereas there exists no complete legislation regarding labour and social affairs in Iceland.

Act on working environment, health and safety in workplaces No. 46/1980. Chapter V ―Execution of a Job,‖ Article 38 (e).

Regulation No. 1000/2004 on measures against harassment at a workplace.

Criminal law Article 199 of the Icelandic penal code No. 19/1940. Any person found guilty of sexual harassment shall be imprisoned for up to 2 years. ‗Sexual harassment‘ here refers, amongst other things, to stroking, squeezing or probing the genitals or breasts of another person, whether under or through clothing, and also to suggestive behaviour or language, which is extremely, offensive, repeated or of such a nature as to cause fear. Ireland Lab & Ireland EAT As indicated above the Employment Equality Acts 1998 and 2004 prohibit harassment in employment on any of the discriminatory grounds (sex, marital status, family status, disability, race, sexual orientation, age, religion, membership of the traveller community). The Act provides redress for an individual who has been subjected to harassment in contravention of the Act. Proceedings have to be taken by the aggrieved individual but assistance can be provided by the Equality Authority, which is a State body established to promote equal treatment in employment. However the proceedings are between the individual and the employer and are thus a matter of private law.

Acts of violence perpetrated in the workplace can give rise to criminal liability. Where the conduct amounts to an assault, an assault causing harm or an assault causing serious harm it is an offence under the Non- Fatal Offences Against the Person Act 1997. This is a criminal statute and the offences, which it created, can be prosecuted by the State before a criminal court of competent jurisdiction. The Act of 1997 also created the offence of ―harassment‖. Section 10 the Act as provides: -

‖For the purposes of this section a person harasses another where—

(a) He or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and

(b) His or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other.‖

The offence of harassment created by the Act is of general application but it could arise in the workplace.

167 Harassment, bullying and violence in *the workplace can also expose an employer to liability under the Safety Health and Welfare at Work Act 2005. This statute imposes a general duty on an employer to take such measures as are reasonably necessary to protect the health and safety of workers. A failure to do so can amount to a criminal offence. The Health and Safety Authority (which is the State body responsible for enforcement of the obligations imposed by the Act) can prosecute a contravention of the Safety Health and Welfare at Work Act 2005. Further, an employer may be vicariously liable in tort for injury suffered by an employee as a result of harassment or violence at work if the perpetrator commits the unlawful act within the scope of his or her employment.

There are a number of statutory provisions, which protect workers from victimisation (or penalisation as it is sometimes described). The Unfair Dismissals Act 1977 –2007 provides that the dismissal of an employee, which results wholly, or mainly from civil or criminal proceedings, actual, threatened or proposed, in which the employee is a party, complainant or a witness, is automatically unfair. Furthermore, victimisation could ground a claim for constructive dismissal under those Acts. The Employment Equality Act 1998 –2004 prohibits victimisation which is broadly defined as including any form of adverse treatment arising from a complaint of discrimination having been made by an employee to an employer, any proceedings by a complainant, having represented or assisted a complainant, having been a witness in proceedings under the Act, having opposed by lawful means an act which is unlawful under the act or having given notice of an intention to do any of the foregoing.

The Safety Health and Welfare at work contains a similar prohibition of victimisation arising from, inter alia, a complaint made under the Act or seeking to prevent an unsafe practice or conduct.

Victimisation is a matter of private law and proceedings can be taken by the victim before the appropriate tribunal having jurisdiction in the matter.

Italy All relevant legislation concerning harassment and violence at work is contained within a legislative act: the law n. 125 of 10 April 1991 on the equal treatment between men and women at work. This law has been amended in 2005 after that the directive 2002/ 73/EC was implemented in the Italian legal system (see legislative act n. 145 of 30 May 2005).

Today, according to the Italian legal system discrimination is: e) every behaviour that discriminates men and women at work and has a detrimental effect on them (direct discrimination); f) every seeming not relevant for discrimination that puts workers (men and women) in a position to be at a disadvantage against workers of a different sex (indirect discrimination); g) worries or not wished behaviours made for reasons related to sex, directed to violation of worker’s (man or woman) dignity or to intimidation of him/her; h) sexual worries or not wished physical or spoken behaviours related to sex, directed to violation of worker’s (man or woman) dignity or to intimidation of him/her.

More usual definition of harassment in the Italian judicial practice is ―mobbing‖,

168 that is a legal term (I think coming from sociology) including, above all, the behaviours of the employer or of the colleagues who disturb or bother the employee with worries at work. The victim, if damaged (for a lost chance in a job, for a health damage) has the right to compensation.

Some collective agreements introduce joint committees (with employee-employer representatives) to improve equal treatment and oppose to harassment.

There is not a particular law for this protection against victimisation (protection of a worker who protests or appeals against harassment).

Lithuania Constitution of the Republic of Lithuania Article 29: All persons shall be equal before the law, the court, and other State institutions and officials. The rights of the human being may not be restricted, nor may he be granted any privileges on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views.

Article 5: Duty of Employer to Implement Equal Treatment at Work, in Public Service When implementing equal treatment the employer, regardless of the person’s age, sexual orientation, disability, racial or ethnic origin, religion or beliefs, must: 1) apply equal recruitment criteria and employment conditions when employing or recruiting to the public service except in the cases set forth in sub-paragraphs 1,2,3,4 and 5 of paragraph 3 of Article 2 of this Law; 2) provide equal working and public service conditions, opportunities to improve qualifications, seek more advanced vocational training, be retrained, acquire practical work experience and grant equal benefits; 3) use equal criteria in evaluating work and the performance of public officers; 4) apply evaluation criteria of dismissal from work and from public service; 5) provide equal pay for equal work or work of equal value; 6) take measures to prevent harassment of an employee or a public servant; 7) take measures to prevent sexual harassment of an employee or public servant; 8) take measures to prevent persecution of or an employee or public servant, who

169 filed a complaint on discrimination to be protect him from hostile behaviour and negative consequences; 9) take appropriate measures to provide conditions for the disabled to obtain work, to work, to a career or to study, provided that the duties of the employer would not be disproportionately burdened as a result.

Labour Code

Criminal Code

170 group involvement is criminalized in Article 169.

Administrative Code

Article 41(6): Violation of equal opportunities of women and men – fines are imposed on officers and employers.

Lux The Labour Courts developed a jurisdiction, mainly based on the decisions of the French Cour de Cassation, regarding moral harassment in which the burden of proof of an act of moral harassment is on the victim of such a behavior who has to prove that, according to the general principle of article 1134 of the Civil Code, the author of these acts of moral harassment, i.e. the employer, has not fulfilled his contractual obligations of the work contract and who engages his contractual responsibility by this faulty behavior ( cf. Court of Appeal: 01.04.2004 N° 27759 LEDIG c/ CATRA S. à r. l. ; 29.03.2007 N° 30765 JONAS c/ HORSE-LUX; 22.06.2007 N° 30994 LUXAIR c/ SCHNEIDER ). Malta Sections 26 to 32 and Sections 44 to 47 of the Employment and Industrial Relations Act. Discriminatory treatment shall include: (a) The engaging or selection of a person who is less qualified than a person of the opposite sex, unless the employer can prove that the action was based on acceptable grounds related to the nature of the work or on grounds related to previous work performance and experience; (b) Actions which apply to an employee, terms of payment or employment conditions that are less favourable than those applied to an employee in the same work or work of equal value, on the basis of discriminatory treatment; (c) Actions whereby the employer knowingly manages the work, distributes tasks or otherwise arranges the working conditions so that an employee is assigned a clearly less favourable status than others on the basis of discriminatory treatment. The provisions of sub articles (1) and (2) shall be without prejudice to the rights and obligations prescribed by the Equal Opportunities (Persons with Disability) Act, and shall not apply to any preference or exclusion which is reasonably justified taking into account the nature of the vacancy to be filled or the employment offered, or where a required characteristic constitutes a genuine and determining occupational requirement or where the requirements are established by any applicable laws or regulations. It shall not be lawful for an employer or an employee to harass another employee or to harass the employer by subjecting such person to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of that person is based on sexual discrimination and which could reasonably be regarded as offensive, humiliating or intimidating to such person. It shall not be lawful for an employer or an employee to sexually harass another employee or the employer (hereinafter in This article referred to as "the victim") by: (a) Subjecting the victim to an act of physical intimacy; or (b) Requesting sexual favours from the victim; or (c) Subjecting the victim to any act or conduct with sexual connotations, including spoken words, gestures or the production, display or circulation of written words, pictures or other material where - (i) The act, request or conduct is unwelcome to the victim and could reasonably be regarded as offensive, humiliating or intimidating to the victim; (ii) The victim is treated differently, or it could reasonably be anticipated that the victim could be so treated, by reason of the victim‘s rejection of or submission to the act, request or conduct. Netherlands The Working Environment Act (public law; includes implementation of the Framework Health and Safety Directive) obliges the employer to develop a policy to combat harassment and violence at work. The ‗working environment service‘ (arbodienst) to which the employer is affiliated can offer support in developing this

171 policy. Every employer must be affiliated to a ‗working environment service‘; the task of this service is inter alia to examine sick workers and to assist in their reintegration process. The employer must make an ‗inventory and evaluation of risks‘ for the working environment in his enterprise, including stress factors. The inventory of risks must include a plan to eliminate or diminish those risks. Thus, the employer is also obliged to make a plan to combat harassment and violence at the workplace. Workers representatives play an important role in the implementation of the general objectives set out by the legislator (see below).

In article 7:646 of the Civil Code and the General Act on Equal treatment (Algemene wet gelijke behandeling, mainly private law) Directive 2002/73/EC is implemented in Dutch Law. These laws contain a ban on harassment and sexual harassment, with quite broad definitions (the word ―unwanted‖ (ongewenst) has been left out in the Dutch definition). It includes a provision regarding victimisation, i.e. the victim is protected against any action from the employer, also after termination of the labour contract.

The General Act on Equal Treatment prohibits also discrimination on grounds of religion or belief, political view, race, sex, sexual orientation and marital status. In addition there is separate legislation inter alia concerning sex- and age-discrimination at work. Employees who claim their rights or who protest against harassment are generally protected against victimisation if the harassment falls within the scope of antidiscrimination legislation. The General Act on Equal Treatment contains provisions to this effect (Articles 8 and 8a). Article 7:658 of the Civil Code regulates the responsibility and liability of the employer vis à vis the employee. The employer must prevent (as far as possible) that any harm should occur at the workplace to the employee or to his belongings. The employer is liable for damage if he fails to prove that he has met his obligations. Pursuant to case law the burden of proof in cases concerning damage at work is generally heavy for the employer and light for the employee. It is possible for an employee who has become a victim of harassment to claim compensation for material and immaterial damage from his employer.

An employee can also base a claim on article 7:611 of the Civil Code, which obliges his employer to act as a good employer.

If the harassment cannot be brought within the scope of explicitly forbidden discrimination, the employee is still protected against victimisation, even without an explicit provision. For example, the Court will not accept a dismissal if it turns out to be a victimisation. If victimisation leads to material or immaterial damage, it is possible for the employee to base a claim on Articles 7:646, 7:658 and/or 7:611 of the Civil Code (see above).

Very serious forms of harassment (for example including violence or severe forms of racial discrimination) may lead to criminal persecution under the Penal Code.

Norway Public/Law: The Working Environment Act (WEA) § 4-3 Prohibition against all sorts of harassment at work. 2) WEA § 13-1 (2) Prohibition against harassment based on political views, membership in trade union, sexual orientation, disablement and age.

172 3) WEA §2-4 Protection of an employee who protests or appeals against harassment. He or she is protected if the protest or appeal is ―justifiable‖ (―loyal‖). If so, the employer cannot make ―reprisals‖. 4) The Act relating to Sex Equality (ASE) § 8a). Prohibition against harassment based on sex, including sexual harassment. 5) The Act relating to Non-Discrimination (AND) § 5. Prohibition against harassment based on ethnology, national origin, descent, colour of skin, language, religion and beliefs. Criminal Law: The Act relating to Punishable Offence § 228 and § 229 Corporal injury. United Kingdom The primary legislation which includes harassment and victimisation provisions: Race Relations Act 1976; Sex Discrimination Act 1975 (which also includes gender reassignment; Employment Equality (Religion or Belief) Regulations 2003; Employment Equality (Sexual Orientation) Regulations 2003; Disability Discrimination Act 1995; Employment Equality (Age) Regulations 2006. The claims are brought by individuals against the parties identified in question 3 above and also may be brought against individuals for whom the employer is legally responsible. The claims are brought as private law claims in the employment tribunals. Claims (other than for dismissal) are subject to a preliminary grievance procedure. Harassment claims may be brought by individuals in the civil courts under the Protection from Harassment Act 1997. Criminal prosecutions may also be brought under this act. The Health and Safety at Work Act 1974 provides employees with protection from psychological harm. It requires an employer to carry out a risk assessment under health and safety regulations. Enforcement is by the Health and Safety Executive or local authority, which has power to bring criminal proceedings for breach. Civil proceedings may be brought for breach of statutory duty also. A worker who suffers a detriment as a result of making a protected disclosure (‗whistle-blowing‘) to his employer may bring proceedings for compensation in the employment tribunal.

2.2 Non – statutory regulation Give a brief overview of the relevant non-statutory instruments, such as collective agreements, codes pf practice, recommendations etc. Explain the content of these instruments.

Austria The institutions mainly occupied with prevention and monitoring are: - Workers Representatives (Works council) - Ombud for Equal Treatment (―Gleichbehandlungsanwaltschaft‖)

The jurisdiction of the Labour Inspectorate mainly lies on the technical aspects of health and safety provisions. Belgium The Collective agreement n°38 relating to the recruitment and selection of workers, made obligatory by the Royal decree of the 31th of August 1999 was modified by the collective agreements n° 38bis of 29 of October 1991, n°38ter of 17 July 1998 and n° 38quater of 14 July 1999. This latest amendment led to the insertion into article 2bis in the Collective agreement of two new grounds of prohibited discrimination, sexual orientation and disability.

Article 2bis of Collective agreement n° 38 now reads:

173 The employer may not treat the candidates in a discriminatory fashion. During the procedure, which term refers both to the ―recruitment‖, referring to all the activities performed by an employer, which relates to the announcement of a vacancy and to the ―selection‖, referring to all the activities performed by an employer which relate to hiring a candidate, the employer must treat all the candidates equally.

Article 11 of the Collective agreement n° 38 guarantees respect for the private life of the candidate: according to this provision, this implies that questions which relate to private life will only be justified, if they are relevant according to nature of the function postulated and its conditions of performance.

This collective agreement has been adopted through negotiations between the social partners within the National Work Council and, after its approval by the Adoption of a Royal decree, it has been made binding upon all employers in Belgium, within all sectors of activity. It is notable that, under Article 56 of the Act of the 5th of December 1968 on Collective Agreements, any violation of the compulsory clauses of collective agreements, which have been approved by Royal decree, will be considered a punishable offence.

Indeed, certain forms of discrimination in employment will therefore be criminalized, despite the fact that the same acts would only lead to civil sanctions under Act of the 25th of February 2003, which constitutes the main legislation implementing the Framework Directive. Czech Republic The course of proceedings is defined by the relevant procedural legislation: Rules of Administrative Procedure, Rules of Civil Procedure and Rules of Criminal Procedure, which also regulate the access to courts. There are no time limits specified for these proceedings, within which they would have to be closed. If necessary, the court may make an emergency ruling temporarily regulating the situation of the parties until the court passes a decision; in labor cases, no deposit is paid in order to secure the compensation of any losses, which may occur as a result of such emergency ruling. Demark Finland An extensive guidance on identifying and preventing the risk of workplace violence is found in the web pages of the Labour Inspectorate. Also several trade unions have published material on the prevention of this risk in their respective sectors, such as health care to give one important example.

The Labour Inspectorate has also published material on harassment at work as an occupational health and safety problem.

The web pages of the Office of the Equality Ombudsman contain guidance on

174 what sexual harassment is, how it is treated under law, and what an employee who is subjected to harassment can do to cope with the situation.

The central labour market organisations have drawn up a widely distributed brochure on issues relating to sexual harassment. The publication ―Good behaviour permitted – harassment prohibited!‖ deals with the definition of harassment, the measures the victim can take, the position of the harasser, and the employer’s duties and responsibility relative to harassment.

France Germany Collective agreements in Germany are legally enforceable, once the parties of the employment contract are bound to it by membership of the contracting trade union or employers‘ association or if the state exceptionally declares the collective agreement to be generally applicable in a certain sector of the trade/industry. In practice, collective agreements play a major role in the setting of wages, working times and other conditions of employment within the statutory framework, without having to be effectively incorporated into the individual contract of employment. In spite of this practical importance of collective bargaining, collective agreements in general do not contain specific provisions on harassment at work.

Rules to prevent and to sanction harassment and violence at work can rather be found on the level of the undertaking. During the last decade, an increasing number of companies in Germany have unilaterally issued in-house codes of practice, some of which also deal with harassment at work. However, the legally binding character of codes of ethical conduct is highly controversial, especially when they set up rules for the employee‘s conduct outside the workplace, which are not directly rooted in the employment, contract itself.

In these cases the employee entitled to compensation for damages.

175 If the employer terminated the employee‘s employment relationship because of the protest, it is unlawful, and upon the request of the employee, the employee shall continue to be employed in his original position.

Iceland The Administration of Occupational Safety and Health has published various brochures/guidlines regarding social and psychological risk factors in the working environment. Among them are brochures concerning harassment in a work place, prevention and reactions. Guidelines concerning harassment can also be found in many undertakings employees policy Ireland Lab & Ireland EAT As indicated above there is a Code of Practice on Bullying in the Workplace. There is also a separate Codes of Practice on Sexual Harassment and Harassment at Work These Codes of Practice defines the terms and provides the procedural steps to be followed in investigating complaints of bullying and Harassment. The codes provides for an informal stage in which the employer should seek to have the issue resolved between the complainant and the alleged perpetrator. If this is not successful the code provides for an investigation by either a senior member of management or by an agreed external investigator. It then provides for an appeal by either the compliant or a person found to have perpetrated bullying to a Rights Commissioner and a further appeal to the Labour Court.

The codes of practice is intended to provide guidance to employers and trade unions** on how issues relating to bullying in the workplace should be addressed. As a matter of general good practice its terms are incorporated in many collective agreements in the form of a bullying policy.

Equally, as a matter of good practice, many employments incorporate a policy on harassment, including sexual harassment, in either their collective agreements or employee handbooks. Where an employer does not have a policy designed to prevent harassment in place it is more likely to be held vicariously liable for any act of harassment, which occurs (the only defence available to an employer is that it did all that was reasonable to prevent the harassment from occurring).

Italy Committees introduced by collective agreements usually take practical initiatives to contrast all harassment behaviours at work or propose codes of good practice.

Lithuania As non-statutory instruments are not wide spread it is not possible to give any comments on this regulation.

Lux - Malta As yet, we have none. Netherlands The ‗inventory of risks‘ (including plans for improvement) which the employer is obliged to make pursuant to the Working Environment Act, needs to be discussed with, and in larger enterprises (over 50 employees) approved by the works council. In 2004 it was reported that over 70% of the enterprises had made an inventory and evaluation concerning ‗undesired conduct‘. Over 50% had a confidential advisor for workers in cases of harassment and violence. Approximately half of the enterprises had a code of conduct concerning harassment and violence.

At sectoral level the organisations of employers and of workers have begun to draw up ‗catalogues‘ of measures, which are apt to be included in the plans for improvement at the enterprise level, to be incorporated in the ‗inventories‘. Tripartite consultations of Government and social partners has issued so-called ‗working environment covenants‘ (arboconvenanten), being non-binding agreements

176 concerning policy measures for the improvement of the working environment, including the combating of harassment.

The issue of harassment at work has come to the fore in recent years and is now permanently on the agenda of policy makers in the social field, including the Government and central organisations of employers and of workers. The Ministry of Social Affairs has published guidelines on the combating of harassment. There is also a special handbook for the public sector, on how to deal with aggression and violence from the public. The Foundation of Labour (central organisations of employers and of workers) has published a (non- binding) code of practice.

As far as we know collective agreements do not have regulations relating to harassment as such. However, most collective agreements regulate discrimination and dismissals.

2) Codes of practice It must be assumed that the new legislation concerning harassment to a certain extends codify practice.

3) Recommendations The provision of the Act relating to systematic health-, environment and security in undertakings (Internkontrollforskriften) lay down requirements to carry through internal supervision in the undertakings comprised by the WEA. United Kingdom Employers may include specific policies as part of the contract of employment. Contractual terms in breach of the discrimination legislation are void. Collective agreements may also be specifically incorporated as contractual terms, although there content may be expressed in general, aspiration terms. The three commissions formerly responsible for matters concerning sex, race and disability discrimination have issued codes of practice. Evidence of a failure to comply is admissible in employment tribunal proceedings. The CEHR now has responsibility for all such codes including religion or belief, sexual orientation and age. Recommendations to remove or reduce the adverse effect of a discriminatory act on a complainant may be made by a tribunal following a claim by an individual or by the CEHR.

3.0 Institutional framework Describe the role of the institutions occupied with prevention, monitoring and conflict resolution in the filed of harassment and violence at work (for example, Ministry of Labour, Equality Committee/ Commission, Workers Representatives, labour Inspectorate, Courts).

Austria You can also find relevant provisions against harassment in a few collective agreements and works agreements. The content of these instruments ranges from the information, that harassment is not welcome, to the right of the victim to appeal; the duty of the employer to find a remedy against harassment and the further information that harassment can lead to the dismissal of the perpetrator. Belgium Describe the role of the institutions occupied with prevention, monitoring and conflict resolution in the field of harassment and violence at work (for example: Ministry of labour, Equality Committee/Commission, Workers/Representatives, Labour Inspectorate, Courts).

3. The firms have a ―prevention consultant‘‘ who offers support to victims of harassment and informs workers of the consequences of issuing a complaint within the firm.

177

The prevention advisor tries to conciliate the victim and the perpetrator.

If this does not work the victim can bring a complaint.

The complaint is given to the employer company with the advice of the prevention advisor.

The employer has to take measures to stop the harassment.

Legal authorities also help all people requesting a consultation on their rights and obligations within the area of their expertise.

The Institute for the Equality for Men and Women is tasked with organising support for associations working in the field of equality between men and women or projects whose aim is to achieve equality between men and women, helping all people requesting a consultation on the extent of their rights and obligations within the limits of its aim, and acting on a legal basis in disputes which could arise from the application of criminal laws and other laws whose specific aim is to guarantee the equality of men and women.

The federal public department of employment and work, which controls well-being at work, may file a complaint with the labour inspectorate, which carries out an investigation and may refer the complaint to the prosecutor.

The employer must subsequently evaluate the prevention measures, which he had already established and, if necessary, adapt them or create new ones.

In the public sector when the facts relating to sexual harassment provided to the

178 confidential service call for an inquiry the latter is carried out by the ‗‗confidential person‘‘. Czech Republic - Demark Finland Looking at bodies outside the judiciary, the most important institution occupied with prevention and monitoring in the field of harassment and violence at work is the Labour Inspectorate. The labour inspectors carry out workplace inspections both regularly and if invited for a particular reason. They give guidance to clients at workplaces, and may also take measures to eliminate or remedy the non- complying conditions. The labour inspection district offices also have staff specialised in harassment prevention.

France Germany In Germany, harassment victims can resort to a multitude of public and private institutions, which provide consulting services. Art. 25 of the General Equal Treatment Act have established a state-run Equality Committee (―Antidiskriminierungsstelle‖), which any person discriminated against, can turn to.

Art. 84 sec. 1 BetrVG provides that every employee shall be entitled to make a complaint to the competent bodies in the establishment if he/she feels discriminated against or treated unfairly or otherwise put at a disadvantage by the employer or by other employees of the establishment. He/she may call on a member of the works council for assistance or mediation. Victims of harassment may also directly contact the works council, as under Art. 85 sec. 1 BetrVG the works council shall hear employees‘ grievances and, if they appear justified, induce the employer to remedy them.

179 Hungary There are not too many of these, we suppose that the big international companies may have some regulation regarding harassment in its collective agreement but we don‘t have knowledge about these. We don‘t know about any codes of practice.

The Equal Treatment Authority has a position on the concept of harassment and sexual harassment. It deals with the Hungarian and European Union concept of harassment and the burden of proof. According to Article 7 the harassment together with direct negative discrimination, indirect negative discrimination, unlawful segregation, retribution and any orders issued for those mean a violation of the principle of equal treatment. Therefore the same instruments can be applied as in the case of breach of equal treatment.

The employee can suit the employer on the court for compensation or other remedies for example restoration the employment relationship if the cause of the termination was harassment.

The victim can turn to the labour court and even to the civil court under personal law if the harassment is not related to employment relationship for compensation or other remedies.

A public administration body called oversees compliance with the obligations of equal treatment: Equal Treatment Authority.

If the Authority has established that the provisions ensuring the principle of equal treatment laid down herein have been violated, they may a) Order that the situation constituting a violation of law be eliminated, b) Prohibit the further continuation of the conduct constituting a violation of law, c) Order that its decision establishing the violation of law be published, d) Impose a fine, e) Apply a legal consequence determined in a special act.

The amount of the fine imposed may vary from HUF fifty thousand (200. - euro) to HUF six million (24.000. - euro) (Section 16.).

The Labour and Employment Control and Supervision Service also have a right to impose fine or use other remedies.

In the case of harassment regulated by the Criminal Code, the police and the public prosecution inquires. If the public prosecutor brings an accusation, the criminal court decides the case.

Iceland Implementation of general labour legislation is supervised by the Ministry of Social Affairs. Two bodies under the ministry, the Occupational Safety and Health Administration and the Directorate of Labour, deal with individual aspects of implementation.

As already mentioned, Art 38 in the Act on Working Environment, Health and Safety

180 in Workplaces No. 46/1980 states that the Ministry of Social Affairs shall issue further regulations regarding measures against bullying in workplaces. The Ministry has done this by implementing Regulation No. 1000/2004 on measures against harassment at a workplace.

Ireland Lab & Ireland EAT The Equality Authority is a statutory body established for the purpose of promoting adherence to the principle of equal treatment in employment. Its remit includes a responsibility for providing guidance to employers and trade unions on procedures to prevent harassment on any of the discriminatory grounds. Trade Union and Employer bodies have also taken initiatives to highlight the unacceptability of any form of violence or harassment at work. The Labour Relations Commission (a body established, inter alia, to promote good practice in employment) has also taken a number of initiatives to promote awareness in this general field.

Italy A public national Committee for equality men-women at work exists in the Labour Ministry. Its members are the Minister, representatives of unions and feminine associations, experts in labour law, economics and sociology. Its task is to promote equality and remove sex discrimination at work. A technical panel of experts supports the committee for investigations and inquiries on discrimination cases.

Labour Inspectorate can make investigations for discrimination cases. It reports all criminal violations to the public prosecutor office and collaborates with the local counsellor of equality.

National and local (region and province) counsellors of equality engage ―positive actions‖(i.e. initiatives) for increasing equality and avoiding discriminations.

Lithuania Supervising the implementation of equal opportunities, the Equal Opportunities Ombudsperson may investigate complaints relating to direct and indirect discrimination, sexual and another harassment. Rulings are reccomendatory. May apply administrative penalties.

Courts may apply civil, administrative and criminal liability.

Lux Malta The Industrial Tribunal and the Law Courts.

Netherlands The Ministry of Labour provides information and guidelines for the combating of harassment and aggression.

The Labour Inspectorate plays a role in the enforcement of the Working Environment

181 Act. Main instruments are: investigation, consultation/advice/guidance, orders given to the employer to take certain measures, administrative fines it the employer refuses to comply. Also possible in serious cases: criminal persecution.

The Works Councils play an important role in the implementation of the Working Environment Act at enterprise level.

Norway The Labour Inspectorate supervises the observance of some of the provisions in the WEA by controls and investigations. The Inspectorate give orders (pålegg) and make resolutions (vedtak) to make sure that the duties established by the WEA, regarding the working environment, are fulfilled. Examples: forbid dangerous chemicals being produced, demand investigations etc. Orders can also be given to the ones delivering and marketing a product. Further, the Inspectorate can give time penalty (dagmulkt) and also put a stop to the undertakings activity if orders are not fulfilled within the time limit.

The Parliamentary Commissioner of Equality and discrimination (Likestillings- og diskrimineringsombudet) and The Equality and Discrimination Committee (likestillings- og diskrimineringsnemnda) is supervising, and contributing carrying out, among others, the WEA, the ASE and the AND, see The Act relating to The Parliamentary Commissioner of Equality and discrimination and the Equality and Discrimination Committee (diskriminineringsombudsloven). The Parliamentary Commissioner gives statements whether or not conditions are at variance with §1, see over. If the parties voluntary don’t conform to the statement, The Parliamentary Commissioner can submit the case to The Equality and Discrimination Committee. If the parties don’t voluntary conform to the Commissioners statement and it must be assumed that waiting for the Committees’ resolution will cause inconvenience or harm, the Parliamentary Commissioner himself can pass a resolution. The Parliamentary Commissioner have the authority to take up cases himself or on request from parties or others. However, cases brought in by other than the parties, demands consent from the party offended. The Equality and Discrimination Committee try cases, which is brought in, by the Commissioner and resolutions appealed by one of the parties after trying by the Commissioner. The Committee have the authority to command the Commissioner to submit cases, tried by the Commissioner, to the Committee. The Committee can pass a resolution whether or not conditions are at variance with § 1. Further, the Committee can instruct stopping, correcting and other actions necessary to ensure that discrimination, harassment, instruction or retribution ceases and to prevent recurrence. The Committee can give time penalty to make sure these actions to be carried out. The Committee cannot annul or alter a resolution given by other public administration organs. The Committees’ resolutions are not binding for the Ministry or the King. In cases, which indirectly raise questions about collective agreements, the parties in the collective agreement can have the question determined by the Labour Court. 3. Workers Representatives assignments relating to harassment, and the working environment in general, are not defined, whether in the WEA or the Basic agreement concluded by the largest labour organization and employers’ association. 4. A safety deputy must be chosen in every undertaking covered by WEA. The safety deputy shall protect the employees’ interests in cases concerning the working environment. The deputy must get up rules regarding protection, instructions and orders. The safety deputy has the authority to stop dangerous work until the Labour Inspectorate decides whether or not the work is dangerous.

182 5. A working environment committee must be established in undertakings with at least 50 employees. The committee is supposed to work for carrying out a ―fully secured working environment‖. It shall participate in the planning of protection- and environment tasks and follow closely the development in questions regarding the employees’ safety, health and welfare. The environment committee try all questions regarding this – also in corporation with The Labour Inspectorate. If the working environment committee finds it necessary due to protect the employees’ life and health, it has the authority to decide that the employer must carry out concrete actions to repair the working environment, within the frames of WEA. To elucidate if danger to the health exists, the committee also have the authority to decide that the employer shall execute measurements or investigations of the working environment. If the employer does not carry out the committees’ decision, the case is to be put before the Labour Inspectorate. The courts solve conflicts by interpret the law and passing judgements. United Kingdom Monitoring is primarily carried out by the CEHR, which is required to work towards the elimination of harassment. Its activities extend to the issuing of codes of practice, conducting enquiries and investigations, providing legal assistance. Every 3 years the CEHR is required to submit to the Secretary of State a report on the effectiveness of equality and human rights legislation. The provisions of the ‗Framework agreement on harassment and violence at work‘ are to be implemented through the Trades Union Congress (―TUC‖) and Confederation of British Industry (―CBI‖) by the promotion of good practices and procedures in the workplace. The Health and Safety Executive is responsible for enforcement of the PHA and related health and safety provisions. Employment tribunals may make recommendations.

4. Procedure – extra judicial and pre-judicial procedures Extra-judicial and pre-judicial procedures Describe the available non-judicial procedures such as complaints procedures, conciliation, and investigation by a competent institution. Make a distinction, if relevant, between individual and collective procedures.

Austria Works council: Its rights are laid down in the Labour Constitution Act (―Arbeitsverfassungsgesetz‖ (ArbVG), BGBl 1974/22). In the case of harassment the following rights of the works council might be useful: - The works council is entitled to supervise compliance with the laws relating to employees of the business. - The works council can request the owner of the business to remove irregularities and carry out the necessary measures. - The works council has the right to obtain information and deliberate on all matters of safety and health protection. - Every relocation promptly must be notified to the works council. If any relocation entails a worsening of the working conditions on a lasting basis, it is legally effective only with the prior consent of the works council. -The owner of the business has to notify the works council prior to giving notice to an employee. If notice is given without notification of the works council it is ineffective. If the works council has objected to termination, it may file suit within one week. - The right to conclude a works agreement concerning questions of harassment, violence at work etc.

183 provide advice, support and information on equality issues in employment and occupation related to sex, ethnic origin, religion or belief, age and sexual orientation; but also on equality issues in other areas of life with regard to a person‘s ethnic origin. Other areas of life are: access to and supply of public goods and services, education, social protection and social advantages. The Ombud for Equal Treatment can represent and accompany persons affected by discrimination (harassment) at preliminary negotiations prior to legal proceedings. The Ombud for Equal Treatment can also demand an investigation of a case of discrimination (harassment) by the Equal Treatment Commission.

Equal Treatment Commission: Its rights are laid down in the Equal Treatment Commission /Ombud for Equal Treatment Act (―Gleichbehandlungskommission/Gleichbehandlungsanwaltschaft- Gesetz‖ [GBK/GAW-Gesetz], BGBl 1979/108). The Commission is entitled to investigate cases of discrimination (harassment) in an extra-judicial procedure. Its expert‘s reports are not binding recommendations, neither for the parties nor for the courts. Belgium The employer must put in place arrangements to prevent violence, psychological harassment and sexual harassment, which must include at least, physical adjustments to the workplace, a statement of the provision made for victims, specifically, the relations with the complaint resolution officer and the specialized prevention adviser, timely, impartial investigation of the facts, listening to and assisting victims, supporting and helping victims return to work, line management‘s obligations to prevent the situations envisaged, information and training for workers and informing the committee for prevention and protection at work (C.P.P.T.).

The specialized prevention adviser may not be an occupational health doctor.

All firms, therefore, must have a specialized prevention adviser.

Employers can also appoint one or more complaint resolution officers to act as ―first line‖ players to listen to what victims have to say and attempt an informal reconciliation.

A range of procedures is available.

Or they can complain to the Federal Public Department of Employment and Work‘s medical inspectorate either because company procedures have not worked or because the victim lacks confidence in them.

If mediation does not work, redress can be sought through the courts either by the victim personally, or their trade union, or a voluntary organization.

Belgian legislation also provides protection against dismissal and imposed changes in working conditions for victims who have brought a substantiated Complaint.

184 Czech Republic - Demark Finland Finland is a country with high union density and established workplace participation mechanisms. A harassment case would fall within the competence of the labour safety representative or the shop steward, depending on whether the emphasis is on health and safety or discrimination aspects of the case. The employee or his or her representative may notify the employer’s representative of the problem and ask for negotiations.

If we are dealing with a delicate matter concerning members of the work community, the institution (clinic or centre) which is in charge of the occupational health care services of the workplace in question may be a suitable, impartial outside body to explore the situation and conciliate between the parties. In the last instance however, it is the employer’s legal duty to take the necessary managerial steps to put an end to any harassment occurring at the workplace.

France Germany Non-judicial complaints procedures are provided in the Works Council Constitution Act (works council) and - for cases of specific discriminatory harassment - in the General Equal Treatment Act (ombudsman). For further details we refer to sec. 3 of this questionnaire. Hungary A mediation procedure is possible according to the Mediation Act and there were some examples when the Equal Treatment Authority mediates between the parties.

The deadline for the process is 30 days.

In the case of harassment regulated by the Criminal Code, the police and the public prosecution inquires.

Iceland According to article 6 of regulation No. 1000/2004 on measures against harassment at a workplace, employee, who has experienced harassment or has witness of such behaviour on a workplace is obliged to inform his employer about this.

According to article 7 the employer shall act as soon as possible if he has received complaint concerning harassment in a workplace.

185 In article 82 of Act No. 46/1980 on working environment, health and safety in workplaces, it is stated that the Administration of Occupational Safety and Health shall monitor to ensure that employers covered by this Act endeavour to secure a good working environment, health protection and safety levels for their workers when at work. Staff of the Administration of Occupational Safety and Health shall make inspection visits to enterprises to carry out their inspection functions, and shall be granted access to the enterprises‘ workplaces for this purpose. They shall also carry out monitoring and market surveillance in the course of their inspection visits. Staff of the Administration of Occupational Safety and Health shall show credentials concerning their work.

Staff of the Administration of Occupational Safety and Health shall have access to documents or other materials that are supposed to be available in enterprises according to this Act.

Staff of the Administration of Occupational Safety and Health may seek police assistance in their inspections when necessary.

According to Act No. 96/2000 on Equal Status and Equal Rights of Women and Men, workers, who believe that they have been discriminated against, can take the matter to the Equality Complaints Board, which can instruct the parties to take steps to remedy any discrimination that may have occurred. Ireland Lab & Ireland EAT There are no formal procedures specifically designed to deal with bullying, harassment or violence at work. There are however processes which are designed to deal with the generality of disputes in either equality law or in industrial relations which can be utilised to deal with these matters. There are a number of instances where employers or employer associations and trade unions have concluded agreements, which set out procedures for dealing with bullying or harassment.

In the case of sexual harassment or harassment on any of the proscribed grounds under the Employment Equality Acts 1998 and 2004 a mediation service is provided by the Equality Tribunal (the tribunal having first instance jurisdiction in equality matters. Claims of harassment, which come within the ambit of Employment Equality law, can be processed through this service. The service deals exclusively with individual issues. It is voluntary and if it fails to resolve the matter the case can be investigated through the normal adjudicative system.

186

The Labour Relations Commission provides a conciliation service to deal with all forms of industrial relations disputes, which are not grounded in issues of legal right. This service is focused mainly on collective issues and deals principally with employments in which collective bargaining takes place. It can and does deal with issues concerning the application of procedures for dealing with harassment or violence.

Counsellor of equality (see n. 3) before starting proceedings can ask the employer to plan in a short time (maximum 120 days) the end of discrimination (or harassment).

Lithuania A person, who thinks that the discriminatory actions have been directed against him, or that he has become a subject of harassment, has the right to appeal to the Equal Opportunities Ombudsperson. Article 12. Competence of the Equal Opportunities Ombudsperson who investigates the complaints related to direct and indirect discrimination, harassment and sexual harassment and provides objective and unbiased consultations related therewith. In the course of investigation or upon completion of the investigation, the Equal Opportunities Ombudsperson may take a decision: 1) to refer the investigation material to a pre-trial investigation institution or the prosecutor if features of a criminal act have been established; 2) to address an appropriate person or institution with a recommendation to discontinue the actions violating equal rights and to amend or repeal a legal act related thereto; 3) to hear cases of administrative offences and impose administrative sanctions; 4) to dismiss the complaint if the violations indicated in it have not been corroborated; 5) to terminate the investigation if the complainant withdraws his complaint or when there is a lack of objective evidence about the committed violation or when the complainant and offender conciliate or when acts that violate equal rights cease to be performed or when a legal act that violates equal rights is amended or repealed; 6) to admonish for committing a violation; 7) to suspend the investigation if the person, whose complaint or actions, in reference to which a complaint has been made, are under investigation, is ill or away; 8) temporarily, until taking the final decision, to ban an advertisement if there is sufficient evidence that the displayed or intended to be displayed advertisement can be recognised as inciting ethnic, racial, religious hatred or hatred on the basis of sex, sexual orientation, disability, beliefs or age and would do serious harm to the public interests, would humiliate human honour and dignity and would pose threat to the principles of public morals; 9) to impose an obligation on operators of advertising activity to terminate an unauthorised advertisement and to establish the terms and conditions for the discharge of this obligation.

Lux - Malta - Netherlands Many companies have a policy regarding harassment, including complaint procedures. These procedures are often regulated in a Collective Labour Agreement. It is important to mention that an employer can be held liable for damages of a victim of (sexual) harassment if he does not have a policy on (sexual) harassment.

187 Conciliation is in many cases initiated by the ―working environment service‖.

If harassment involves a violation of the General Act on Equal Treatment (for example sexual ‗intimidation‘ or ‗intimidation‘), the Equal Treatment Committee is competent to give a (non-binding) opinion. Norway The Labour Inspectorate give orders and makes resolutions if necessary. An order must be given in writing and contain information about the right to complain. The complaint procedures are done in accordance with the Act relating to the public administration (forvaltningsloven), which means you have to complaint to the organ closest to The Labour Inspectorate that is the Ministry. The Labour Inspectorate, when necessary, appoints experts to carry out controls and investigations.

The Parliamentary Commissioner of Equality and discrimination The Parliamentary Commissioner gives statements whether or not conditions are at variance with §1. If the parties voluntary don’t conform to the statement, The Parliamentary Commissioner can submit the case to the Equality and discrimination Committee. If the parties don’t voluntary conform to the Commissioners statement and it must be assumed that waiting for the Committees’ resolution will cause inconvenience or harm, the Parliamentary Commissioner himself can pass a resolution. The Parliamentary Commissioner can take up cases himself or after request from parties or others. However, cases brought in by other than the parties, demands consent from the party offended. The Commissioner is an independent organ within the public administration, and the King and the Ministry cannot instruct or commute a resolution.

The Equality and Discrimination Committee The Equality and Discrimination Committee try cases which is brought in by the Commissioner and resolutions appealed by one of the parties after trying by the Commissioner. The Committee have the authority to command the Commissioner to submit cases, tried by the Commissioner, to the Committee. The Committee can pass a resolution whether or not conditions are at variance with § 1. The Committee is an independent organ. . If the safety deputy discovers potentially harmful conditions, he must notify both the employees and the employer. If the warning is not taken into consideration, within a reasonable period of time, the deputy must notify the Labour Inspectorate or the Working Environment Committee. The Safety Deputy shall participate in all inspections done by the Labour Inspectorate.

Working Environment Committee

The Working Environment Committee have access to the investigation documents worked out by the Labour Inspectorate and the Police in cases regarding prevention of recurrence of sickness, accidents etc. at the work-place. It can also pass resolutions implying investigation by experts or commissions when necessary. The employer then has the right to put such a resolution before the Labour Inspectorate.

If the working environment committee finds it necessary due to protect the employees’ life and health, it has the authority to decide that the employer must carry out concrete actions to repair the working environment, within the frames of WEA. To elucidate if danger to the health exists, the committee also have the authority to decide that the employer shall execute measurements or investigations of the working environment. If the employer does not carry out the committees’ decision, the case is to be put before the Labour Inspectorate.

188 The Ministry can, in recommendation, give instructions regarding the Committees’ work, including form of procedure.

United Kingdom Employees must follow a statutory grievance procedure with the employer before instituting proceedings (except for dismissal) in the employment tribunal. ACAS provides independent advice before proceedings are started and an officer from ACAS is automatically assigned to each employment tribunal case to assist in promoting settlement. Certain employment tribunals currently operate a judicial mediation scheme in which cases of at least 3 days estimated duration are considered for mediation by an employment judge. The CEHR may conduct inquiries into relevant issues of equality and diversity, human rights, the promotion of good relations between different members of specified groups i.e. the categories covered by specific discrimination laws. The CEHR may also undertaking investigations into alleged unlawful discriminatory acts. If satisfied that an unlawful act has occurred, the CEHR may serve an unlawful act notice requiring the offender to produce an action plan. Enforcement of the notice is through the civil court. Failure to comply is enforceable as a criminal action. The CEHR may also enter into individual agreements not to commit an unlawful act, which is enforceable in the civil court.

4.2 Judicial procedures Describe the judicial procedures in a harassment case. Distinguish between the different types of procedures, such as civil litigation, labour court procedure, administrative and criminal procedure giving attention to access to justice, time limits and burden of proof.

Austria The Austrian labour courts are part of the common civil courts‘ system. Only in Vienna there is a special labour court, which deals only with labour and social security matters. Unless otherwise provided in the Labour and Social Security Courts Act (―Arbeits- und Sozialgerichtsgesetz‖ [ASGG], BGBl 1985/104), the procedure before the labour courts is conducted in accordance with the provisions of the Austrian Code of Civil Procedure (―Zivilprozessordung‖ [ZPO], RGBl 1895/113).

- Access to justice (locus standi) Labour courts (simplified): The employee can choose between the labour court with local jurisdiction for the place of his residence during the employment and the labour court with local jurisdiction for his (former) workplace.

Criminal courts (simplified): The local jurisdiction of the criminal court depends on the place where the crime (sexual harassment) has been committed

189 - Time limits Labour courts: - One year for financial compensation for material and/or immaterial damage in cases of harassment on the ground of sex or gender - Six months for financial compensation for material and/or immaterial damage in cases of harassment on other grounds (ethnic origin, age etc [see 1.]) - 14 days for re-instatement after dismissal related to harassment

- Burden of proof Labour courts: The Austrian implementation follows closely the Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex. When persons, who consider themselves wronged because the principle of equal treatment has not been applied to them, establish facts from which it may be presumed that there has been discrimination, it is for the respondent to prove that there has been no breach of the principle of equal treatment. Belgium Labour tribunals were mentioned as a means of monitoring legislation. They also suggest measures to the employer with a view to stopping harassment. This is the last option that the victim can choose, but the Belgian legislation encourages the use of the internal procedure with the prevention advisor rather than the procedure in front of a tribunal

The General Antidiscrimination Act of the 25th of February 2003, identifies harassment as a form of discrimination, and defines the notion in strict conformity with the Directives.

Article 442bis of the Penal Code, introduced by the Act of the 30th of October 1998, already criminalises harassment in general.

The inclusion of the prohibition of harassment in the Act of the 25th February 2003 would ensure that a civil action might be lodged against the harasser, with the possibility of a shift of the burden of proof under article 19 of the Act. However, article 32undecies of the Act of the 4th of August 1996, inserted in that Law by the Act of the 11th of June 2002, provides in similar terms for such a reversal of the burden of proof.

Article 32undecies of the Act of the 4th of August 1996, as modified by the Act of the 11th of June 2002, inserting a new chapter Vbis in that Act states that:―where a person having a legal interest establish before the competent court facts from which it may be presumed that there has been violence or moral or sexual harassment in employment, it shall be for the respondent to prove that there has been no such violence or moral or sexual harassment committed‖

190

Czech Republic In the event that the rights and obligations ensuing from equal treatment are violated or if discrimination occurs in the course of applying the right to employment, an individual may demand a) Desistance from such violation; b) Elimination of consequences of such violation; and c) Appropriate satisfaction. If such remedies are not sufficient, the individual may also demand pecuniary compensation for other than proprietary loss.

An employee may demand the same remedies.

A fine not to exceed CZK 400,000 may punish an administrative infraction committed in this field and a criminal offense shall be punished by imprisonment.

Estonia In labour disputes court deals with violence and harassment issues and with discrimination claim is possible to turn to the Chancellor of Justice. In accordance to Chancellor of Justice Act § 19 subsection 2 everyone has the right of recourse to the Chancellor of Justice for the conciliation procedure if he or she finds that a natural person or a legal person in private law has discriminated against him or her on the basis of sex, race, nationality (ethnic origin), colour, language, origin, religion or religious beliefs, political or other opinion, property or social status, age, disability, sexual orientation or other attributes specified by law. Finland The judicial process in a harassment case may concern awarding damages to the victim or sentencing the harasser to pay a fine or to imprisonment. In both cases the regular court has jurisdiction. Moreover, both kinds of claims may be treated in the same proceedings.

It is the alleged victim who has locus standi in such litigation. The public prosecutor may support the claimant if a criminal charge is presented. In the latter case, and presuming that the charge is based on a breach of the Occupational Health and Safety Act, the Labour Inspectorate typically initiates the whole criminal investigation. The representative of the Inspectorate is then also heard in court.

191 Harassment cases are not treated in the Labour Court, because this court is competent only in collective labour disputes, and harassment issues are so far not regulated in collective agreements.

As is common in other cases of discrimination, the main rule in harassment cases is that the burden of proof is reverted. Basically, the complainant has to establish that he or she has been subjected to harassment at the workplace. In sexual harassment cases the complainant’s position is facilitated by Sec. 10 of the Equal Treatment Act, which provides that the employer must upon demand and without delay give an explanation to any one who is of the opinion that he or she has been discriminated against on the basis of gender. In case of sexual harassment this explanation should state what measures the employer has taken to prevent harassment from taking place.

France Germany In Germany, cases of harassment at work are primarily brought before employment tribunals and criminal courts. Employment tribunals are empowered to deal with all legal disputes between employer and employee arising from the employment relationship. Due to this exclusive competency of labour jurisdiction, ordinary civil litigation is not of practical relevance in this context, neither administrative procedure.

This general rule of burden of demonstration and of proof is modified in the specific context of discrimination: Art. 22 of the General Equal Treatment Act states that the employee only needs to demonstrate and prove mere indications of discriminatory harassment. Subsequently, the burden falls on the employer to show and prove that either discrimination is not existent or that law has justified the difference in treatment. Another modification takes place in unfair dismissal proceedings: Here, it is up to the employer to substantiate and prove the alleged fairness/social justification of the dismissal.

192

Harassment victims must enforce their claim to compensation for material and/or immaterial damages within the statutory time limits. Art. 195 of the German Civil Code lays down a general limitation period of three years, beginning with the end of the year in which the claim has come into existence. As the understanding of ―harassment‖ is characterised by a systematic and continuous proceeding of the offender, which might span several years, German courts resort to the appearance and detectability of the damage as a starting point for the course of the limitation period. This starting point is also applicable to the - generally much shorter - cut-off periods (e.g. three or six months) set out in many collective agreements.

Art. 15 or the General Equal Treatment Act sets out an even shorter period: According to this, any claim for damages under this Act (cf. sec. 2.2 of this questionnaire) must be made in writing within an exclusionary period of two months, counting from the date on which the affected employee obtains knowledge of the discrimination. An action for unfair/wrongful dismissal must be filed within three weeks after having received the written notice (Art. 4 of the Unfair Dismissal Act, KSchG). Hungary The process of the Labour and Employment Control and Supervision Service and the Equal Treatment Authority

The administrative section of the county courts reviews the decisions of the Labour and Employment Control and Supervision Service.

In both cases the deadline for bringing an action is 30 days from getting the final decision of the Authority or Service.

3. Criminal process

In the case of harassment regulated by the Criminal Code, the police and the public prosecution inquires. If the public prosecutor brings an accusation, the criminal court decides the case.

4. Court process

The Equal Treatment Authority pursuant to the right of actio popularis, may initiate a lawsuit with a view to protecting the rights of persons and groups whose rights have been violated.

The injured party or their representative has to

193 prove the likelihood of that: The injured person or group has suffered disadvantage or the immediate risk of this exists, and The injured person or group possesses a protected characteristic defined in the Equal Treatment Act. If the injured party has sufficiently evidenced the above circumstances, the respondent has to prove that: The circumstances proved likely by the injured party do not exist, or It has observed or in respect to the relevant relationship was not obliged to observe the principle of equal treatment (Section 19.). Iceland Judicial procedures Harassment cases before Icelandic courts can be civil or criminal cases. The Labour Court would normally not deal with such cases. In civil cases the main rule is that the plaintiff has the burden of proof. If evidence of direct and indirect discrimination based on gender is presented, the employer is, according to the Act on the equal status and equal rights of women and men, No. 96/2000, obliged to prove that other reasons than gender sustain the criteria for his/her decision. Ireland Lab & Ireland EAT A claim alleging harassment on one of the grounds proscribed by the Employment Equality Acts 1998 and 2004 may be presented to the Equality Tribunal. Except where the Complainant is under a legal disability (in which case the Equality Authority has locus standi) the claim must be presented by the Complainant. There is a time limit of six months from the date on which the act alleged to constitute harassment occurred. This may be extended by a further six months where reasonable cause is shown.

A full appeal lies from the decision of the Equality Tribunal to the Labour Court. There is a further appeal on a point of law to the High Court.

A claim for constructive dismissal alleging harassment may be presented to the Employment Appeals Tribunal within six months of the employee’s resignation from the employment because of the alleged acts. This time limit may be extended by up to a further six months where ―exceptional circumstances‖ prevented the presentation of the claim within the initial six-month period. The burden of proof in a constructive dismissal case is on the employee. An appeal from the decision of the Employment Tribunal lies to the Circuit Court. Unusually, a further appeal lies from the Circuit Court to the High Court.

194

The standard of proof is the normal civil standard – the balance of probabilities.

Acts of harassment or violence may be prosecuted as criminal offences or a civil action in tort may be instituted. Italy a) Ordinary judicial procedure: - the worker (man or woman) claims to labour court (or administrative tribunal for some categories of public servants) with assistance of a lawyer or counsellor of equality (see n. 3); counsellor of equality can take part in proceedings to help the worker; - a hearing is fixed not later than 60 days; - the worker must provide proof of discrimination; when a discrimination is presumed, the employer has the burden of not discrimination proof;

All decisions of the court (awards, decrees, orders) are soon enforceable.

Lithuania No pre-judicial procedures acquired, no restrictions on access to justice When investigating the complaints or applications of natural persons, as well as the disputes of persons concerning discrimination on grounds of sex, in courts or other competent institutions, it shall be presumed that the fact of direct or indirect discrimination occurred. A person or institution against which a complaint was filed must prove that the principle of equal rights has not been violated. Time limits – 3 years,

Lux Beside the sexual and moral harassment mentioned above, article L. 251-1, § 3, deals with the harassment based on a discrimination linked to an undesired behavior in the field of religion or conviction, disability, age, sexual orientation, race or membership of an ethnic group that causes a violation of the personal dignity and creates an intimidating, hostile, degrading or humiliating environment. Malta Netherlands Legal conflicts concerning an employment contract (for example harassment) are decided in first instance by the Kantonrechter (chamber of the ordinary District Court), possibly followed by appeal and cassation. Other cases are decided by the civil chamber of the ordinary District Court. Procedures start with a writ of summons. A lawsuit must be started within five years (but preferably off course much sooner).

In discrimination cases, the position of a worker who has become a victim of

195 harassment is strengthened through access to the Equal Treatment Committee and the switch of the burden of proof after the establishment of facts from which it may be presumed that there has been discrimination. Norway Civil litigation: A harassment case follows the ordinary procedures for civil litigation; First step is to procure an originating summon from a minor civil court. This is not necessary if a lawyer assists both parties. On every step of the case, the parties can agree on conciliation due to the Act relating to civil litigation (ACL). The court shall continuously appraise the opportunity for an amicable settlement. The parties can agree on, or the court can decide, legal conciliation. According to the new ACL from 2005, the court have to deliver a judgement within 6 months from the writ was issued. Burden of proof is the usual predominance of probability.

Labour Court procedure: As a point of departure a harassment case involving an individual, lies outside the Labour Courts’ sphere of authority.

Criminal procedure: Harassment-cases do not appear in the criminal court system, only cases involving violence. The power to institute prosecution is public and individual, dependent on the severity of the corporal injury. United Kingdom Employment tribunals deal with the bulk of claims concerning violence or harassment at work. Individual claims are brought for unfair dismissal (including constructive dismissal), which may concern bullying, or harassment unrelated to any specific group. Such claims may also include specifically pleaded harassment claims related to the six categories referred to in paragraph 1 above. The latter claims can be pursued independently but must be brought before an employment tribunal. There may be preliminary hearings to give directions for preparation for trial or to resolve preliminary issues e.g. whether the claim was presented in time. An employment judge sitting with 2 non-legal members conducts the hearing. The parties attend in person with their witnesses to give evidence. Themselves may represent them by lawyers, non-lawyers or. There is a limited right of appeal on issues of law. There is a limited entitlement to the award of costs. Employment tribunals have a limited right to hear contract claims which are otherwise heard in the civil courts where claims for negligence or under the PHA can be pursued. There is no provision for the involvement of ACAS or for judicial mediation. Trials are before a judge alone. There is a wide discretion to award costs. Criminal proceedings are limited to some claims under the PHA and health and safety legislation. The CEHR has the capacity to institute or intervene in legal proceedings if they appear to the CEHR to be relevant to one of their functions. Employment tribunal proceedings must be brought within 3 months of the relevant act subject to provision for extension of time on just and equitable grounds (or the more limited test of reasonable practicability in dismissal cases).

Claims in the civil courts for breach of contract may be brought within 6 years or, in negligence, within 3 years. The civil courts require a claimant to prove his/her case on the balance of probabilities.

7.8 Remedies and sanctions – describer the remedies and sanctions that may result from harassment cases.

Austria Labour courts: - Financial compensation for material damage - Financial compensation for immaterial damage (within the range of the Equal Treatment Act: minimum 720 Euros in harassment cases on the ground of sex or gender, 400 Euros in harassment cases on other grounds [ethnic origin, age etc; see 1.]; within the range of the Federal Equal Treatment Act: minimum 720 Euros in

196 harassment cases on all relevant grounds) - Re-instatement after dismissal related to harassment

Criminal courts: - Penal fine, arrest Belgium The employer must have a prevention adviser with skills in the psychosocial aspects of work and violence at work, psychological harassment and sexual harassment on the staff of his company prevention service.

Failing that, there must be a prevention adviser on the external prevention service used.

The specialized prevention adviser may not be an occupational health doctor.

All firms, therefore, must have a specialized prevention adviser.

Employers can also appoint one or more complaint resolution officers to act as ―first line‖ players to listen to what victims have to say and attempt an informal reconciliation.

A range of procedures is available.

The prevention advisor tries to conciliate the victim and the perpetrator.

If this does not work the victim can bring a complaint.

The complaint is given to the employer company with the advice of the prevention advisor.

The employer has to take measures to stop the harassment.

If mediation does not work, redress can be sought through the courts either by the victim personally, or their trade union, or a voluntary organization.

Belgian legislation also provides protection against dismissal and imposed changes in working conditions for victims who have brought a substantiated Complaint. Czech Republic Demark

Estonia In labour disputes employees who have been treated illegally has the right to claim

197 ―material and immaterial damage/ compensation‖. The court shall determine the immaterial damage amount, whereas in cases where the employer objects the burden is on the employer to prove that there was no discrimination.

Finland Probably the most important remedy in harassment cases is a pecuniary compensation, which the court may order to be paid to the wronged party. This is provided for in the Equal Treatment Act and in the Non-Discrimination Act. The upper limit of the compensation is 15,000 EURO, but if warranted by the nature of the offence and by the circumstances, the limit may be exceeded. The purpose of the remedy is mainly to compensate for the suffering and other immaterial damage incurred to the victim. In addition to this special compensation, the court may order the actual damages of the victim to be compensated by virtue of the general rules on liability for damages.

Punishment for the crime called discrimination at work, the elements of which cover also harassment, can be a fine or imprisonment up to one year.

France Germany All the criminal offences mentioned above (cf. sec. 2.1 of this questionnaire) induce the imposition of a penal fine. Alternatively, the committer of battery can be punished with up to five years‘ imprisonment; coercion may result in up to three years‘ imprisonment and deliberate insult in up to one year‘s imprisonment. Battery and insult, however, are only prosecuted if the victim formally files a petition for a penalty within the time of three months; here, the mere reporting of the offence to the police does not suffice for criminal prosecution.

For establishments with generally more than ten employees, the German Unfair

198 Dismissal Act (KSchG) establishes the requirement of social justification for a dismissal declared by the employer: The dismissal is justified only if it is due to person-related, conduct-related or economic reasons. A dismissal related to harassment can be justified by conduct-related reasons if it is the offender who has been dismissed by the employer. On the other hand, the dismissal of the victim cannot be justified by certain misconduct or a long period of illness if this is due to acts of harassment attributable to the employer (cf. above). In these cases, the employee can also sue the employer to be employed according to the contractual job description.

The Equal Treatment Authority shall impose fine that is may vary from HUF fifty thousand (200. - euro) to HUF six million (24.000. - euro) (Section 16.). The Labour and Employment Control and Supervision Service also have a right to impose fine or use other remedies.

16. Penal fine

Any person who commits the act of harassment:

a) against his/her former spouse or domestic partner,

b) against a person under his/her care, custody, supervision or treatment,

17. Financial compensation

The victim is entitled for the total compensation of all his/her financial and non- financial damages. There is no limitation and the civil or labour court can decide the case.

5. Re-instatement

199 If the employer terminated the employee‘s employment relationship because of harassment, it is unlawful, and upon the request of the employee, the employee shall continue to be employed in his original position (reinstatement of the employee could not be exonerated). Iceland Article 99 of act nr. 46/1980 claims that non-compliance with the Act and regulations that are issued accordingly are punishable by fines, unless heavier punishment is applicable through other legislation. Fines shall be paid to the State Treasury. Court cases based on the Act and regulations that are issued accordingly shall be subject to the Code of Criminal Procedure. A person, who deliberately or through negligence, violates Act 96/2000 on Equal Status and Equal Rights of Women and Men, can be made liable for damages under general principles of tort. In addition to pecuniary loss, the person concerned may be awarded compensation for non-pecuniary loss. Furthermore, violations of the Act. can be punished by fines paid to the State Treasury. Ireland Lab & Ireland EAT Redress for acts of harassment are available under the Employment Equality Acts 1998 and 2004. Redress **is also available under the Unfair Dismissals Act 1977 –2007 where the harassment results in dismissal (including constructive dismissal). The redress can include an order for reinstatement, reengagement or an order for compensation in an amount not exceeding twice the annual remuneration of the complainant. If the harassment is on the gender ground a claim can be initiated before the Circuit Court (rather than the Equality Tribunal or the Labour Court). In such an event the Circuit Court has unlimited monetary jurisdiction. Where a claim is taken under the Employment Equality Acts 1998 and 2004, the Equality Tribunal, or the Labour Court on appeal, may make any further order it considers necessary directing an employer to take a specified course of action in order to redress the effects of the harassment.

Italy d) penal fine from € 103,29 to € 516,45 (law n. 903 of 9 December 1977, art. 16); e) financial compensation for material and immaterial damage (law n. 125 of 10 April 1991, art. 4);in the limit of damage evidence; f) re-instatement after dismissal related to harassment (law n. 125 of 10 April 1991 n. 125, art. 4); in Italian labour law a dismissal related to discrimination is void and it is always followed by re-instatement (law n. 300 of 20 May 1970, workers‘ statute, art. 15 and 18);

Lithuania Penal, administrative fines, freedom restriction, arrest, compensation of pecuniary and non-pecuniary damage, re-instatement.

Luxembourg Not applicable. Malta Any person contravening the provisions of articles 28 and 29 shall be guilty of an offence and shall be liable on conviction to a fine (multa) not exceeding two thousand and three hundred and Twenty-nine euro and thirty-seven cents (2,329.37) or to imprisonment for a period not exceeding six months, or to both such fine and imprisonment. Any employer who contravenes or fails to comply with any recognised conditions of employment prescribed by a national standard order or by a sectoral regulation order or collective agreement, or with any provisions of this Act or any regulations made thereunder shall, unless a different penalty is established for such offence, on conviction be liable to a fine (multa) of not less than two hundred and thirty-two euro and ninety-four cents (232.94) and not exceeding two thousand and three hundred and Twenty-nine euro and thirty-seven cents (2,329.37). (2) Where any employer is convicted of - (a) having failed to pay wages at not less than the rate applicable in accordance with a recognised condition of employment as defined in Part III of this Act or with a contract of service whichever shall be the higher, or (b) having made any illegal deduction or

200 inflicted any fine other than those specifically permitted by article 19, or (c) having failed to make payment of any bonus payable under article 23, or any other payment due by an employer to any employee under this Act or under any order made thereunder, or (d) having withheld any remuneration or any payment in lieu of notice, or (e) having failed to allow paid holidays as provided for or specified in any national standard order, sectoral regulation order or contract of service, or (f) having failed to effect payment of any moneys due to an employee under this Act or under any national standard order or sectoral regulation order or any other order made under this Act, the court shall, at the request of the prosecution, besides awarding the punishment imposed by the preceding sub articles of this article, order the offender, on proof of the amount, to refund or pay to the employee or employees concerned, or to the apprentice or apprentices concerned, as the case may be, the said amount due by him and, in the case of holidays with pay not allowed, a sum equal to the pay thereof, and any such order by the court shall be of the same force and effect and be executable in the same manner as if it had been given in a civil action duly instituted between the employee or employees concerned or the apprentice or apprentices concerned, as the case may be, and the employer. Netherlands In civil cases financial compensation for material and immaterial damage is possible. The Kantonrechter can also refuse to dissolve the labour contract with a victim of harassment. On the other hand we have many examples of cases in which there is a summary dismissal of the offender, or termination of the labour contract of the offender by the judge, with a small compensation or no compensation at all. If an employer violates the Working Environment Act an administrative fine can be imposed. In serious cases penal persecution is possible, resulting in a fine or imprisonment.

Norway Penal or administrative fine If an employer, voluntarily or involuntarily, commit an offence under the Act relating to Working Environment, he can be punished by fines or prison up to a 3 months period of time, or both (WEA § 19-1).

Financial compensation for material and immaterial damage

If the case is brought in as a matter of discrimination (WEA chapter 13), the offended can claim financial compensation for immaterial damage, regardless of the employers‘ guilt. Financial compensation for material damage can be claimed according to the common compensation rules.

Re-instatement after dismissal related to harassment The point of departure is that the employee is re-instated if he or she has been unlawfully dismissed. United Kingdom The possible remedies for unfair dismissal are reinstatement, reengagement or compensation for financial loss. An award of financial compensation may also be made in a case of detriment arising from a protected disclosure. In discrimination claims the tribunal may make an order declaring the rights of the parties in relation to the act complained of, make a recommendation for the respondent within a specified time to remove or reduce the adverse effect on the claimant, award damages. Damages may be awarded for injury to feelings, damages for physical and psychiatric injury, aggravated damages where the respondent has behaved maliciously or oppressively. In both unfair dismissal and discrimination cases, claims may be brought against the employer, and in discrimination cases, named individuals as well as the employer. The employer may seek to rely on the statutory defence that he took such steps as were reasonably practicable to prevent the employee doing the act in question. In civil proceedings for breach of contract damages may be awarded for loss, which was in the reasonable contemplation of the parties when the contract was made. This may include non-economic loss. In claims in negligence damages may be awarded for the type of harm, which was reasonably foreseeable including non-economic loss.

201 A criminal prosecution under the PHA may result in a fine and/or imprisonment. A civil claim may result in damages being awarded. An employer cannot avoid liability for the actions of his employee. An employer in breach of a prohibition notice served by the Health and Safety Executive may be subject to criminal proceedings resulting in a fine or imprisonment. A civil claim for damages for breach of statutory duty may be brought under the Health and Safety at Work Act 1974.

6. EU Context – describe your impression of the impact of EU law on legislation and case-law in your country in relation to harassment and violence at work, paying particular attention to Directives 2000/43/EC of 29 June 2000, 2000/78/EC of 27 November 2000, 2002/73/EC of 23 September 2002, 89/391/EEC and Framework Agreement annex to COM (2007) 686 final. Does your system meet the requirements of the Framework agreement on harassment and violence at work?

Austria - Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin - Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation - Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions - Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work - Framework agreement on harassment and violence at work (annex to COM (2007) 686 final)

Since 1993 case law has established in several cases in relation to sexual harassment. But there is not much case law in relation to harassment on other grounds until today.

The Directive 89/391/EEC has not much impact on the field of protection against harassment.

The Framework agreement on harassment and violence at work (COM (2007) 686 final) is not much known until today. So the impact is small.

Does your system meet the requirements of the Framework agreement on harassment and violence at work? Give particular attention to the procedure mentioned in paragraph 4: - Investigation without undue delay; - Impartial hearing; - Support with reintegration;

202

Belgium Czech Republic With regard to the fact that the Antidiscrimination Act has not yet been adopted, it is possible to define the terms relating to this issue according to Act No. 435/2004 Coll., on Employment; this Act regulates the safeguarding of the national employment policy in accordance with the law of the European Communities. From the point of view of equal treatment in fulfilling the subject matter of this Act, the very range of parties to which the Act is addressed, as specified in Section 3, is very interesting.

The Labor Code expressly states that it ―embeds relevant regulations of the European Communities‖ and it also expressly mentions the directives stated in the questionnaire. Lawsuits in the field of equal treatment and prohibition of discrimination have been rather rare so far. Demark

Estonia The Estonian Republic has incorporated relevant European Union directives into Estonian legislation, which meets the requirements of the European Framework of harassment and violence at work. Finland All EU Directives, mentioned in the questionnaire, have been implemented in the Finnish legal order mainly through the three statutes that have been discussed above. There have been no serious doubts as to whether the implementation has been correct regarding, for instance, the rules on harassment.

It may be of interest to inform that a reform is under preparation, the purpose of which is to combine the Equality Act and the Non-Discrimination Act into one single statute.

France Germany German anti-discrimination legislation as well as statutory regulation on health and safety at work has been strongly influenced by EU law. The Directive 89/391/EEC was transposed into German national law in 1996 by the Industrial Safety Act (Arbeitsschutzgesetz). Under Art. 4 of this Act, the employer is obligated to organise the workplace in a way that minimises risks for the employees‘ health and safety. Measures taken, including the prevention of occupational risks and the provision of information and training must be updated in line with technical progress and must combat the risks at source. However, this Act primarily deals with industrial safety concerning the actual setting of the workplace, production facilities and work equipment. Due to this focus on the organisational environment of the workplace this Act is less relevant in cases of harassment and violence as a result of human conduct at work.

203 Harassment and Violence at Work in 2007. Rather, aspects like investigation without undue delay, impartial hearing and support with reintegration are included in the general concepts of fairness of a dismissal and of negligence and fault in damage claims unless they have been agreed upon in collective or works council agreements (cf. sec. 2.2 of this questionnaire). The awareness of employers for safety and health of employees in the context of harassment and violence at work is nevertheless growing in Germany. This might to some extent be due to the deterrent effect of court decisions awarding considerable financial compensation to harassment victims. Hungary The EU law had a great impact on the Hungarian legislation and case law however the Hungarian definition of harassment is wider, because it is regulated under more fore features, attributes. But there is no independent definition for sexual harassment in the Hungarian law; the concept of harassment contains the sexual harassment. The Hungarian law does not contain that the harassment can be realized also by words, or without word in a physical manner. The Hungarian law partly meet the requirements of the framework agreement. The deadline for the process of the administrative authorities is 30 days, while a decision should bring. The impartial hearing is realized but the support with reintegration is insufficient. Iceland Council Directive NO. 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions was among those directives that specially were taken into consideration in the Act on the equal status and equal rights of women and men, No. 96/2000. Discrimination of all types is prohibit, direct or indirect, on grounds of gender. As mentioned before, if evidence of direct and indirect discrimination based on gender is presented, the employer is obliged to prove that other reasons than gender sustain the criteria for his/her decision. Council Directive No. 89/391/EEC on the introduction of measures to encourage the safety and health of workers at workplaces, which is referred to in item 8 of Annex XVIII to the Agreement on the European Economic Area, has been introduced with Act No. 68/2003 amending the Act on working environment, health and safety in workplaces No. 46/1980. The Icelandic system presumable meets the general requirements of the Framework agreement on harassment and violence at work. Ireland Lab & Ireland EAT Directives 2000/43/EC, 2000/78/EC and the amendments to Directive 76/207/EC were implemented in Irish law by the Equality Act 2004. However the Employment Equality Act 1998 had already proscribed discrimination, including harassment, on any of the protected grounds under these Directives. The general requirements of Directive 89/391/EC were met by the provisions of the Safety Health and Welfare at Work Act 1989. This Act as since been repealed and replaced by the Safety Health and Welfare at Work Act 2005, which provides stronger protection for the safety and health of workers. As indicated earlier contraventions of this legislation constitute a criminal offence, which are prosecuted in the criminal courts. In so far as this legislation imposes certain statutory duties on employers in respect of safety health and welfare at work any breach of this duty can be relied upon to ground an action in tort in the ordinary courts.

In cases of violence or harassment, which does not come within the ambit of the statutory provisions, a claim can be processed under the Industrial Relations Acts 1946 – 2004, as a trade dispute. A Rights Commissioner or the Labour Court can investigate the dispute. Either tribunal can issue a non-binding recommendation, which can provide for compensation. These recommendations are accepted in circa 80% of cases.

The Framework agreement on harassment and violence in the workplace has not been formally implemented in Ireland. It is currently the subject of discussions between the social partners.

204

There is an infrastructure available to deal with these cases expeditiously and

impartially through the various employment tribunals (Rights Commissioner,

Employment Appeals Tribunal and the Labour Court). There is, moreover, a

Code of Practice on bullying and harassment in the workplace. This Code of

Practice deals with the matters referred to at Clause 4 of the Framework

Agreement. The Code of Practice is not legally binding although its provisions

must be taken into account by the various employment tribunals in considering

any case to which its terms are relevant.

Italy All European directives were implemented in the Italian legal system: - Directive 2000/43/EC by law n. 215 of 9 July 2003; - Directive 2000/78/EC by law n. 216 of 9 July 2003; - Directive 2002/73/EC amending Council Directive 76/207/EEC by law n. 145 of 30 May 2005; - Directive 89/391/EEC by law n. 626 of 19 September 1994, not long ago substituted by law n. 81 of 9 April 2008;

Lithuania Lithuanian law is harmonized with European Union law by implementing particular provision into national legal acts. Directive 2002/73/EC of 23 September 1002 is implemented in law on equal opportunities for woman and men. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation are implemented in Law on equal treatment. Lux Not applicable. Malta Netherlands The Equal Treatment Directives under concern have been implemented by national legislation: General Act on Equal Treatment and provisions in the Civil Code concerning equal treatment of men and women (employees). Article 10 of the Framework Equal Treatment Directive 2000/78/EC and Article 8 of the Race Directive 2000/43/EC have been implemented by amendments of discrimination legislation concerning the burden of proof. This also affects the burden of proof in harassment cases involving discrimination. Prohibition of discrimination is also embedded in the constitution and in the Penal Code.

The Framework Safety and Health Directive have been implemented by the working environment Act. This Act was amended in 2007 with the aim to decentralise the working environment policies, leaving much room for employers and workers representatives to implement the Act in a way most suitable for the sector and enterprise under concern.

205 As explained above (under 2. Regulatory framework), the Dutch organisations of management and labour are developing policies to combat harassment and violence at work in a way that approaches the requirements of the Framework agreement. However, one cannot say that the Framework agreement has been fully implemented at this moment. There are plenty of global policy instruments, but there is not always a guarantee of investigation without undue delay, impartial hearing and support with reintegration. Norway Norway is politically, but not legally, committed to carry out Directive 2000/43/EC and Directive 2000/78/EC. This is because the legal authority behind these directives is the EF treaty article 13; this article is new and not a part of the EEC-agreement. Norway has nevertheless decided to carry through the ―article 13- directives. Directive 2002/73/EF was incorporated into the EEC-agreement July 9th 2004 and is a part of Norwegian law. Directive 89/391/EEC is incorporated into the EEC-agreement and is a part of Norwegian law. In fact the WEA mainly correspond to this Directive. The Directive is also carried out in the regulations/provisions of the act, established by the Labour Inspectorate. The Framework Agreement on harassment and violence at work is signed by the main trade unions and employers‘ associations in Norway (KS, NHO, HSH, Spekter, Fornyings- og administrasjonsdepartementet, LO, YS, Unio and Akademikerne). These organisations corporate with The Labour Inspectorate to implement the Agreement in Norway. Does your system meet the requirements of the Framework agreement on harassment and violence at work? Give particular attention to the procedure mentioned in paragraph 4: Investigation without undue delay; Impartial hearing; Support with reintegration; Yes. United Kingdom The implementation of national law to correspond with various directives dealing with discrimination has given rise to numerous cases challenging the correctness of the implementation, which continue to this day. Even after amendments to the race and sex discrimination statutes, the courts have found deficiencies particularly on the issue of causation. Last year in an application for judicial review of the implementation of the Equal Treatment Directive into national law the High Court ruled that the formulation ―… on the grounds of her sex…‖ introduced an impermissible element of causation (i.e. what was the reason for the harasser‘s action?) In comparison with the wording of the directive (i.e.‖… related to the sex of a person…‖) which focuses on the nature of the conduct. Amending legislation has now substituted ―…unwanted conduct that is related to her sex or that of another person.‖ By parity of reasoning similar criticisms are made of the five other discrimination types. The Employment Appeal Tribunal upheld a similar criticism of the Sexual Orientation Regulations this year. Similar problems have been encountered when considering the liability of employers for the harassment of employees by third parties with whom the employer has no contractual relationship. Attempts by the lower courts to interpret the legislation to give effect to the directive on the issue of sexual harassment were defeated eventually by the House of Lords. The failure of legislative draftsmen to adopt the wording in the discrimination directives more closely has created unnecessary uncertainty in the interpretation of the national laws on harassment.

206 7. Examples – describe one or two harassment cases which have been dealt with in your country and which you consider interesting or significant.

Austria Case-law

Supreme Court 1999/01/21, 8 ObA 188/98z: Financial compensation for immaterial damage in the case of sexual harassment has to be given by the court in a summary assessment and one amount and not for every single attack. This system corresponds to the usual system of the civil damages law in cases of pain compensation.

Supreme Court 2008/06/05, 9 ObA 18/08z: On the ground of the consideration no 8 of the Directive 2002/73/EC (―To this end it must be emphasised that these forms of discrimination occur not only in the workplace, but also in the context of access to employment...‖) the Supreme Court decides, that an employer, whose managing director had sexually harassed a woman applying for a job, has to pay financial compensation to this woman. The employer cannot argue the harassment took place before the start of the employment relationship. Belgium It has been accepted by the labour tribunal, at Dinant on the 1st of June 1998, that ―injuries resulting from a physical attack on a worker by her superior in the course of sexual harassment were caused by an „„industrial accident‟‟ as was the pregnancy of a worker „„seduced‟‟ by her foreman by moral constraint‖

Czech Republic There was a case where a female employee claimed that she had been refused managerial position because of being a woman. She was not successful in her lawsuit, because her employer proved that the reason for her refusal had been the fact that the successful candidate had had higher qualification and that he had been better in general.

In another case, three employees who had been given a notice of dismissal for redundancy were not provided with a part of their salaries, because according to the defined conditions, the salary part paid for successful fulfillment of defined tasks did not belong to employees whose employment was to expire. The court required the employer to provide a material reason for the condition establishing inequality between them and other employees. Demark Estonia None Finland None France Germany In practice, the German term ―Mobbing‖ is used by many an employee during court hearings e.g. of dismissal cases, even though this allegation is not based on the legal definition of harassment mentioned above. Typical conflict situations in an employment relation generally do not allow for the assumption of systematic and continuous bullying; not every quarrel or disagreement between colleagues and/or superiors qualifies for ―harassment‖ under the law. This suggests that the general public in Germany has a much broader understanding of ―harassment‖ than the relevant legal term.

207 Within the last decade, there has been a number of court decisions though, which have approved the existence of legally qualified ―harassment‖, carefully appraising and balancing the particularities of the individual case. Among these rulings there were cases in which superiors repeatedly insulted and threatened an employee or systematically turned a blind eye to the employee‘s performance. Company information was withheld from the employee; his/her letters of complaint were not answered. A multitude of unjustified warnings was issued, and applications for leave were continually refused. Employees were intentionally either over- or under challenged and transferred to working posts outside of their set of skills, contrary to the contract of employment. Others were assigned an isolated and badly equipped workplace (e.g. an empty office without computer). In some cases, the victims have been awarded financial compensation for material damages, e.g. the loss of earnings due to sickness caused by harassment, or for immaterial damages.

The company car (a VW Touran), which had previously been placed at the disposal of the employee, was exchanged for a smaller car (a Daewoo (Chevrolet) Matiz). His home-office was closed and replaced with an unfurnished office on the employer‘s premises. In addition, a retrospective instruction to write complete reports on each day of the preceding month and a futile briefing to send weekly reports directly to the head of the personnel department - even for times of sick leave - and finally the unsolicited issue of a reference that contained a detrimental grading convinced the employment tribunal that these measures were taken by the employee‘s superior and tolerated by the employer with the purpose of making the employee resign from his job.

The Equal Treatment Authority had four harassment cases; one was finished with the change of the working place of the employee.

The third case was when a director of a school asked a pupil in front of the other pupils and the teacher that: ―What's up, are you lesbian?‖ The Equal Treatment Authority decided that it wasn't harassment, because the intent of the director was not to create a hostile environment, just asked a bad question. The director asked forgiveness for lots

208 of time. The harassment is rarely happened by only one statement, it is usually a continuous behaviour that leads to a hostile environment around the victim.

The fourth case was when the Authority stated that the dispute over the work problems and the employer's instruction for the better work is not qualified as harassment.

Judgement of the Supreme Court of Iceland, June 12. 2008, case no. 555/2007

These case involved complaints by two women teachers employed at a boys secondary school. The Complainants alleged that they were subjected to sexual harassment by pupils at the school. The first named Complainant was a teacher of Irish and the second named complainant was a teacher of religion.

The Complainants contend that they had been subjected to acts of sexual harassment by students. The first incident referred to involved a student being particularly abusive to the second named Complainant in a sexually inappropriate fashion on a number of occasions in or about September 2004. It was also alleged that the student would stand up close to the second named claimant in the corridors. She reported this to the Principal using the standard form for complaints involving serious breaches of discipline (―the blue form‖). The School Principal claimed that the complaint recorded on the blue form had no sexual connotations and related only to an incident which occurred in September 2004.

On 18th December 2004 there was a further incident. On that occasion a page containing numerous sexually offensive and explicit references was included in a Religion test answer paper given to the second named Complainant. This incident was reported using the blue form. An investigation ensued but the Principal concluded that no disciplinary action should be taken since the offending student could not be positively identified. There were also incidents in which sexually explicate graffiti involving both Complainants appeared on the school wall. There were two further incidents in which a sticker was attached to the first named Complainant‘s back on which an expression of an explicit sexual nature had been written. This was also reported on the blue form. The matter was investigated and a sanction imposed on the student responsible. This consisted of a period of suspension, part of which ran concurrently with the schools mid term break.

There were further incidents of graffiti appearing around the school, offensive comments being written on blackboards and notes of an explicit and offensive nature being left on the Complainants‘ desks. The Complainants wrote to the Secretary of the Board of management of the school complaining at what they regarded as the Principal‘s failure to deal adequately with the problem. The Complainant also contacted their trade Union, which raised the matter with the school‘s board of management.

There were further incidents of harassment and the Complainant brought proceeding

209 against the school pursuant to the Employment Equality Act 1998.

Position of the parties.

The Complainant contended that the school had a duty to provide them with a workplace free of sexual harassment. The contended that the Respondent had failed to fulfil that duty by failing to take any or any appropriate action to prevent the harassment by students. The respondent contends that as a matter of law it cannot be vicariously liable for the alleged wrongful acts of the students. They further contend that they acted appropriately in response to any complaints made by the Complainants and are not liable for any harassment suffered by them.

Held.

The Court went on to hold that every employer has a duty to provide its employees with a place of work free of sexual harassment. The Court held on the facts of the case that the Respondent had failed to take any effective steps to stop the harassment of the teachers after it became aware of what was happening. The Court held that the Respondent‘s failure to exercise effective control over what was happening meant that it had failed in its duty to provide the Complainants with a place of work free from sexual harassment. The Respondent was thus directly liable for the harassment suffered by the Respondent. They were each awarded compensation in the amount of €40,000, which contained a punitive element.

Example 2. – A Shop Assistant v a Sports Store

Facts

The Complainant, who was aged 18 at the material time, was employed by the Respondent as a sales assistant in its store in a major shopping centre in Dublin. It was her first job. She had suffered from drug addiction and was then drug free. A group involved in rehabilitation of drug abusers had assisted her in getting the job. The Respondent had known her history in that regard. At the time of the incident giving rise to the case the Complainant had been employed for 13 weeks.

210

Held.

The Court was satisfied that there was no evidence whatsoever to suggest that the Complainant was guilt of theft. The manager made no complaint to that effect until after the Complainant had reported the harassment to which she had been subjected. The Court noted that the investigation of the Complainant‘s complaint had been assigned to a man who had no training or expertise in the investigation of sexual harassment. The manner of he investigation was wholly inappropriate and in itself amounted to further harassment and victimisation of the Complainant.

The Court was satisfied that the Complainant was harassed because of her sex and that a man would not have been subjected to the same treatment. Her complaints were upheld.

The Court held that the discriminatory treatment to which the Complainant subjected was aggravated by the subsequent conduct of the investigation and the manner of her dismissal. The Complainant did not seek reinstatement.

The Court awarded the Complainant compensation in the amount of €31, 618, which was the extent of its monetary jurisdiction in the case.

Italy More than a judicial case, I prefer to describe the story reported in a successful Italian movie of 2003: Mi piace lavorare - Mobbing (I like to work – Mobbing), directed by Francesca Comencini and interpreted by Nicoletta Braschi. A woman (that we name Anne) is employed as a clerk in the marketing office of a factory. During her job she discovers some not regular affairs of the head clerk and asks him to rectify all mistakes. This one thinks that she wants to give

211 evidence of his misconduct and begins to harass her with some worries. At first she is moved from her desktop, after she is employed on a job without any task and spends her time sitting at her writing desk with no assignments. At the end she is placed in a passageway of the offices, employed on a photocopier machine out of order. Anne asks the union stewards for help and they ask the management of the factory for an explanation about her situation. The staff manager doesn’t have any explanation and says that she will be replaced as soon as possible. Weeks go by. Nothing changes and she contacts a lawyer. Anne falls in a depression and stays far from her job for some time. She comes back for a brief period and at the end she resigns. The movie ends at the moment in which Anne goes into the labour court building with her lawyer.

This short summary of the story needs a comment. Anne chooses the judicial procedure more than the administrative. Administrative remedies are a very complex system that today is not successful in practice. More effective are the judicial remedies, first of all the individual claim to labour courts for a judicial injunction to suspend harassment at work (or ―mobbing‖, see n. 2.1) and to obtain damage compensation.

Lithuania The case was dealt in 2003. A man was not allowed to take a paternity leave and warned about firing. The Supreme Court held it as discrimination on grounds of sex and ruled that the claimant should be re-instated to his previous position and his employer was obliged to provide employee with paternity leave.

Lux - Malta - Netherlands In a case about the behaviour of a teacher of a school. The teacher received a warning. Later there was a complaint of two (other) female employees of the school. This time the teacher had used rude sexual language and had lifted the T-shirt of one of the employees. The school dismissed the teacher immediately. This summary dismissal was (despite a duration of the labour contract of 17 years) accepted by the Kantonrechter in Amsterdam. She ruled that it was relevant that the teacher has had a previous warning, and did not accept the argument of the teacher that ―it was only a joke‖.

b. in a case of a hospital employee in Rotterdam the situation was as follows: a female employee of the hospital was harassed by a lung specialist. She filed a complaint. The hospital tried to find another job for her within the hospital, but did not succeed in finding that other job. The hospital then asked the judge to terminate the labour contract with the employee. This was granted but the hospital had to pay a severance payment of € 25.000,-, because the hospital had no policy on (sexual) harassment and had not protected the employee against the harassment. The lung specialist paid (out of court) € 7.500,- to the employee. After this the Employee started a lawsuit against the hospital based on article 7:658 (see under 2.1: employer must prevent that any harm will occur to the employee on the workplace). The court ruled that the hospital was liable, but did not grant the claim of material damages because of the payment of € 25.000,- in the previous proceedings. The court did grant the claim for immaterial damages, because of the consequences the harassment had on the psychological well being of the employee.

212 Norway In RT-2004-1884 dealt with (omhandlet) financial compensation for material damage and immaterial compensation for mental damage caused by harassment. The Supreme Court found, after a concrete assessment (vurdering), that involuntary behaviour from the employer could not be stated and consequently no compensation. The Supreme Court said: ―There is no reason to doubt that As’ own experience was that he was badly treated. But objectively I cannot, when I temporarily leave out of account (ser bort fra) the significance of As’ special trait of character (karaktertrekk), se any reason to comprehend (oppfatte) Bs’ behaviour in general as harassment of A. The conclusion is the same when I se this behaviour in connection with the more concrete incidences I have gone through.‖ United Kingdom Brumfitt-v-Ministry of Defence: In this case the claimant attended a lecture with a group of other women and men in which the lecturer persistently used offensive language. Her claim for sexual harassment failed as the language was directed at the entire group and was not discriminatory. There was no evidence that it was directed at her as a woman in particular. It may now be argued that the lecturer‘s language amounted to ‗…unwanted conduct of a sexual nature....‘ so as to bring in within the revised definition of sexual harassment.

213 APPENDIX III

PROGRAMME

Thursday 3rd July 2008

Arrival of delegates at K&K Hotel, Maria Theresia, K+K Hotel Maria Theresia - Kirchberggasse 6 - 1070 Vienna 20.00`Informal dinner – Restaurant “Witwe Bolte” at Gutenberggasse 13, close to the hotel (cost approx €30 all included)

Friday 4th July 2008

At Supreme Court of Justice, Schmerlingplatz, Vienna 9.0 Registration 9.30 Opening. Welcome to our guests by Gerhard Kuras Response from Marlies Glawischnig, Judge of the Austrian Supreme Court 10.0 Keynote Address – “Addressing harassment in the work-place” – Prof. Ulrich Runggaldier. 11.0 Coffee break 11.15 Panel discussion - “Implementing and enforcing the Framework Agreement on Harassment and Violence at Work”  Dr Herbert Hopf, Judge of the Supreme Court of Austria  Dr. Peter Hoffman, Department for Social Politics, Labour Chamber, Austria,  Mag. Christa Schweng Department for Social Politics, Commercial Chamber, Austria 12.30 Guided tour, - Palace of Justice 13.0 Lunch

14.0 First Technical Session – “Identifying the problem of Workplace Harassment”

15.30 Coffee break. 15.45 Second Technical Session – “The effectiveness of National Legislation in combating harassment”. 17.15 Discussion of Report on Oslo Congress. 17.30 Close of session.

20.00 Formal dinner at the Roof restaurant of the Palace of Justice.

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Saturday 5th July

9.30 Third Technical Session – “The place of non-statutory regulation in addressing the problem of harassment”. 11.0 Coffee 11.15 Plenary session – Feedback, synthesis and conclusion. 12.00 Close of Conference. 12.15 Annual General Meeting of EALCJ

13.00 Lunch

15.30 Social Programme – Guided tour through the city of Vienna

20.00 Dinner at the Matthias Kierlinger Wine Lodge

215 APPENDIX IV

LIST OF DELEGATES

Herbert Hopf Austria Gerhard Kuras Austria Marlies Glawischnig Austria Alain Simon Belgium Zdenek Novtotny Czech Republic Mare Marimaa Estonia Aida Vallet France Jorma Saloheimo Finland Outi Antila Finland Jessica Sellin Germany Helmut Zimmerman Germany Tunde Hando Hungary Kate O’Mahoney Ireland Dermot McCarthy Ireland Peter O’Leary Ireland Kevin Duffy Ireland Aldo de Matteis Italy Giovanni Mammone Italy Fabio Mssimo Gallo Italy Paola Accardo Italy Sigita Redenaite Lithuania Danute Kutriene Lithuania Jean-Marie Hengen Luxembourg Tom Moes Luxembourg Abigail Lotharo Malta Taco van Peijpe Netherlands Tjaard van Loben Sels Netherlands Miran Blaha Slovenia John van Gelder UK Vivienne Gay UK Gill Sage UK

Secretariat Alan Neal Convenor Colin Sara Secretary-General Michael Homfray-Davies Treasurer

216 APPENDIX V –

EUROPEAN ASSOCIATION OF LABOUR COURT JUDGES

Combating Harassment and Violence at Work

CONFERENCE DAY 1

Opening address by Hungary

10 a.m Keynote address - Professor Runggaldier ―Addressing Harassment in the Workplace.‖

Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin - Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation - Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions - Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work - Framework agreement on harassment and violence at work (annex to COM (2007) 686 final)

You will find provisions against sexual harassment at the workplace in the Austrian Equal Treatment Act since 1993 and in the Austrian Penal Code since 2004. All other provisions about harassment on other grounds (i.e. gender, ethnic origin, religion or belief, age, sexual orientation and disability) are a result of the implementation of the Directives 2000/43/EC, 2000/78/EC and 2002/78/EC. The Austrian implementation follows closely the text of the Directives.

The starting point is the provision in community law of offence of harassment in the workplace. Section 3 of the Directive 2008 is fundamental – unwanted conduct in any of the grounds

217 referred to in the directive; religion, ideology etc. Violating the dignity of the person and creating intimidating etc environment. Concept may be defined in relation to each individual member state.

The provisions apply to selection criteria, training, etc, employment work and conditions of employment, membership and involvement of organisations. In addition, social security, social benefits, education access and the provision of goods and services available to public al include the provision of harassment.

Directive 2006/54 is more important when compared to 2068, distinguishing harassment and sexual harassment – unwanted conduct etc Art 2 defines sexual harassment.

In Art 2 2006/54 both harassment and sexual harassment are considered discrimination in accordance with 2006/54.

Remedies – member states must ensure that judicial and administrative remedies are available. In Art 9 Para. 2: member states must ensure that their national law complies with the provisions in the directives, which must be complied with.

The rules of the burden of proof play a substantial role in this context – member states shall take such measurements as necessary to ensure that persons credibly show facts from which it may be presumed there has been direct or indirect discrimination then for the respondent to prove that there is no breach of the equal treatment.

Member states must promote dialogue – codes of conduct etc.

Harassment and sexual harassment.

Austria and Italy and Germany

In Austria we look at Para 6 & 7 Equal Treatment Act 2004 as amended. There are many new provisions. Paragraph 6 defines sexual harassment, and in paragraph 7 the definition of harassment is different.

Para. 6.1- Sexual harassment exists where a person is sexually harassed by the employer/third person in connection with his employment contract. A person can also be harassed outside the employment relationship. Within the employment relationship conduct of a sexual nature takes place, which compromises the worker‘s dignity, is unwanted by the worker and/or creates an intimidating work environment – decisions that have an impact of career, wages etc.

Para. 7.1- Equal Treatment Act: this kind of harassment exists if the worker is harassed by means of gender, and he or she is discriminated against.

Para. 7.2- sex oriented harassment exists if conduct compromises dignity of a person is unwanted etc or the circumstances are discriminatory i.e. career decision or career path.

Paras. 12 and 26 - sexual harassment and sex oriented harassment the affected person who has a claim for compensation for injury suffered, as long as the detriment is not only an economic lost, but 700 euro in the case of sexual harassment a minimum award, for personal degradations suffered.

Burden of proof – plaintiff must substantiate his or her claims and then it is incumbent on defendant to prove that it is more probable the facts show that the defendant is telling the truth. This is different to the Directive 2000/78. I don‘t know why.

There are criminal provisions in para 280. Sexual harassment and public gender oriented acts.

Institutional framework.

These are closely regulated by law – the ET Commission and ET Agency involvement are established within the framework. A key function of the ET commission on the request of the female

218 lawyer (must be a female) is to compile expert reports on matters of infringement or undertake a case by case investigation. There are three senates in the ET Commission, if they conclude there is an infringement their task is to address a written proposal and call upon the persons responsible to remedy the discrimination. If not complied with by each interested association; the senate can take an action.

The ET Agency comprises of a female lawyer is responsible for the guidance and support of people who feel that they have been discriminated against; they can investigate, publish a report and make recommendations. It can request a written statement from employer or works council. If discrimination is shown proceedings can be taken and a mandate of investigative steps taken.

Non-statutory regulations

To combat discrimination which is not codified in law, a framework of collective and work agreements are found rarely in Austria. In the collective agreement – point 24, sexual harassment is considered a violation of human dignity as well as an invasion of personal privacy. Sexual harassment of a female colleague is considered in relation of personal privacy. Subjective perception of the affective person, including unwanted physical conduct, suggestive remarks, invitation to sexual remarks, could result in job related disadvantages. Comprehensive regulations are set out and a catalogue of sanctions. These are under no circumstances binding in law.

Para 97.1 item 1 of the labour constitution. No special provisions in Austria is presently within the framework. Now, this can be an issue in the future.

Problems

The solution to the problem – one can asks what falls under the offence of harassment and how it is to be differentiated from sexual harassment (i.e. sex content – display of offensive materials etc). It is almost impossible to create a comprehensible catalogue of sexual conduct but fun to try Ed). It depends on a person‘s sensibilities. For the industrial Germany – is it sexual conduct when a man gives perfume or flowers to his secretary, usually associated with women or to require female employees to dress differently, or if a man compliments women on new dress?

In USA employers have forbidden a wide range of conduct, even if it does not pose a threat to gender orientated equal treatment. Freedom of speech and opinion are threatened. To what extent is this going to happen in the future?

UK: Breadth of protection in Austria? Mobbing? Your description concentrates on the position of women. Sexual orientation harassment regarding men, disability etc and the more general problem of bullying? Are they covered in the ET Act?

Ans: I have prepared two cases. One case in which a gay worker was harassed by other colleagues, and they were dismissed by employer. I have papers in which the cases are explained.

UK: Colleagues?

Ans: Were dismissed by employer and claimed unfair dismissal.

UK: the man who was harassed could he come to the court?

Ans: Not the subject of this case. We have another case on this . In Austria there are specific provisions of this act, restricted to certain ideas and sexual orientation has protection. We have cases where they can win claims. The provisions are included in Directive 2000/78 as implemented. We have general provisions in our civil law, which give protection if you read them together. If there is a case it is more difficult if you have one of the criteria in the directive. Mobbing and bullying is a special phenomenon and a great, special subject. We don‘t have any special regulations about mobbing but we have general clauses. They can go to the Labour Court in

219 mobbing labour relations. The concept is not restricted to labour law, and is also possible to use it in other areas, but this can be more complicated.

Austria: Law complies with the directives that create a minimum standard. Harassment is limited to specific categories. It is very important to protect sex, gender, but why not protect from harassment on every ground because it is all discrimination? No victim felt better because there was no reason for the harassment.

UK: We agree. Your observations tell us how the European policy framework is narrow because it is buildt on the gender discrimination model, within the limitation of community law. It has left open the questions of; are there not many reasons falling outside the list of specified prohibitive reasons that give rise in the working content behaviour described in harassment? The national reports show us a number of very different approaches. E.g. in the UK, Ireland and the Nordic groups, these matters are approached as matters of equal opportunities provisions on gender basis and expanded in the same way as the EU legislator.

They go much wider by taking a different dimension, health and safety at work, security at work, and another area is brought in – Framework Agreement including not only harassment but violence at work.

89/391 provides obligations on employer to ensure a healthy and safe working environment. It includes obligations originally contained in 80/1107EEC that requires risk assessments to be carried out. The model becomes a stricter and onerous model for the employer than the gender based equal opportunities model adopted in 2000/78 and 2006/54. The sex or gender based harassment is divided into sub-categories but is still gender base. It reflects the power balance. The mechanisms and ability to express interest and needs is more developed in relation to gender then even racial and national original, since the directive of 2000. Anglo-Saxon has a longer experience of race and disability following the American model. The development of harassment starts with sexual, has grown into race and then takes off into a list of designated grounds. Looking more widely into Austria‘s model are we finding a consolidated approach?

Netherlands: When looking at our own regime, both approaches Alan has pointed out are applied to different degrees in Netherlands. On one side the approach of equality/discrimination law, specified to certain grounds and areas and the other side, the safety & health approach and the duty of employer to take care of a safe working environment. They have consequences because the legal regulations and ways of enforcement differ in both. In Netherlands if you focus on equality approach, sexually harassed, and he or she wants to take the case to court, it will be the civil court where we deal with the labour cases. The procedure and the sanctions and remedies will follow the rules of civil litigation.

If you opt for the approach of safety of health, we are in a different area of law, public law. You make a complaint to the public authority, a health inspector who will talk to the employer and make a recommendation. Different roles with different outcomes, it would be more successful in creating a working environment safe from harassment but not a secure way in the individual case where they get recognition and compensation. This distinction is necessary but we should look at the consequences.

Aus: In Austria we have provision regarding labour law which leads to safety in the workplace. Private law goes before labour court. We have a provision of health and safety enforced by the public. There are no specific provisions, but general provisions in civil code and specific provisions regarding health and safety.

Italy: In every legal system there are the important rights of workers to equality. In every national system there is a fragment of the national way and the EU way. It is the sum of the two systems. We have a particular law against harassment. Every new directive has been met in our legal system. The legislation – in different ways we give protection. Our national law doesn‘t have definition of mobbing, but we have lots of cases.

Finland: I fully agree with Taco‘s analysis between health and safety law and equal treatment regulations. They have differences; both may cover aspects of harassment. A solution, it doesn‘t have

220 to be either or it can be both health and safety law and harassment envisaged in that legal regime, EU legislation and Finish legislation, may in some cases cover harassment on sex. If harassment in workplace is causing adverse effects on mental health of worker, if based on sex it may be covered by health and safety law also. It may provide us with benefits and advantages of both legal regimes. There may be some problems if some national orders different authorities and courts applying two different sets of law, it is possible the work goes to regular courts first and then to labour inspectorate and then to another court with a claim based on gender discrimination law.

Germany: The system is different to Austria; we have no general provisions but specific harassment definitions. 89/391 has been transposed. Health and safety dealt with under contractual duties and also specific duties under the provisions. It is for employer to justify there is no discrimination once the employer has shown discrimination. The burden of proof is extremely difficult for the employee to prove harassment not based on sexual harassment.

Austria: The dignity of the person is very important.

There are the problems of concurrent discrimination. The new act states that we can, and in the case of multiple discrimination, put a higher minimum from £720 to £1440. Is it not necessary to make regulations regarding concurrence of discrimination?

UK: Multiple discrimination is not the best title. You can have three separate sets of things with three separate people doing it. Our current legislation copes and you bring all three claims together, each having a clear separate strand. The real problem is concurrent, I would describe as combined – ―I suffer because I am an Asian female‖. Stereo-types of women are double for Asian women. We have one case a few years ago arising out of the first female solicitor who headed the Law Society, when the first instance court said she has been badly treated as a woman and Asian and found in her favour. On the next level they said no had not been badly treated as a woman and an Asian and she lost. Our law is not well established to deal with this problem, when you see the statistics. It is of growing concern; we have Single Commission of Equality and Human Rights, responsible for overseeing all forms of discrimination that are looking at this problem.

11.16 Panel discussion - ―Implementing and enforcing the Framework Agreement on Harassment and Violence at Work‖  Dr Herbert Hopf, Judge of the Supreme Court of Austria  Dr. Christoph Klein, Head of the Department for Social Politics, Labour Chamber, Austria,  Mag. Christa Schweng Department for Social Politics, Commercial Chamber, Austria

Dr Herbert Hoffman: We represent the Austrian social partnership. Industrial relationships in Austria are decided in chamber by the social partnership, which joined forces in the Austrian economy after WW11, and as a consequence there are only a few strikes in Austria. Voluntary membership by trade union and mandatory membership by the chamber. In November 2006 the EU Commission was followed by a framework agreement in 2007 aimed to prevent and manage problems of bullying, sexual harassment in a zero tolerance policy regarding such behaviour of cases of harassment and violence. You can never be careful enough concerning future discrimination regulations.

In 27 April 2007 the framework agreement was signed with implementation in 3 years.

Mag C. Schweng: Agreement negotiated between 4 parties at cross-sector level, employer level, employee TUC and sectoral unions. In 2000 Lisbon agenda was announced to try and make Europe the most competitive areas in the world, and the social partner‘s roles became quite specif. When we deal with subjects like stress and violence it may be between to decide and implement agreements autonomously. They have more descriptions, not creating freedom rights for employees and employers but giving guidance. A very important thing, because it changes perception.

221 In 1999/2000 the commission asked a safety and health party whether something should be done against violence in the workplace, and they came up with an opinion of both physical and violence and the framework was already covering violence at work. Guidance was to be given on how to re-implement the framework directive.

In 2003-2005 we decided to deal with the topic by way of a seminar exploring possibilities of reaching a voluntary agreement. This was included in the work programme by social partners. The health and safety directives were stressed.

In 2006 we commenced negotiation- a complicated procedure because each member has to give their proposed consent and they must interlink with each other. This takes time. The 3 pages you can see here took some time to be accepted and negotiated at all levels. There are no rights provided in this agreement. We have mainly the statement against harassment in place and then a procedure if harassment happens. Third party violence – from customers and patients, tourism in hotels and working in banks, agreement is a compromise by social partners, harassment procedures can also be used for third party rights.

Mr Hoffman what happens in practice when somebody complaints of harassment and/or mobbing?

A lot of employees are aged 40 plus, they are not so very stable in the labour market. The first big problem is for supervisors to become involved in the bullying and the victim feels isolated and alone with the problem. Nobody is made responsible for solving the problem. Another strategy is to transfer victims to another workplace – a big problem. The opposite happens, they don‘t get such good job and the new colleagues think he or she is responsible for the situation and something is wrong with him or her. It can lead to isolation and psychological problems. The strategy of mobbing is variety in form – criticise their work, isolate them, give them no information, give them no new tasks and isolate them. This is hard. On the other hand you have supervisors and members of the work council who try to sort the problems – workshops for chiefs and employees who have the problem of mobbing. In some cases we have works agreement on how to handle conflict and solve problems in the workplace. We have 2 step approaches to solve this problem:

Victims come to us and talk about the working situation, our experts analyse it with the laws we have. If it is bullying/harassment we send the victims to counter-link to help people to get more active and solve the conflict, and signal that your programme is important for us and that you are not the only one who has the problem. The next step is that the employees try to solve the problem with the work council with results and they don‘t go to court. It is a preventive strategy and framework in which to deal with problems.

What are the reasons for harassment?

There are lot of workers and employees, and in many cases, the strategy of employer is severance. We have a big competition situation between young and older employees. Change in the organisations, the change processes is every day and every month, people are replaced and new tasks are given. The people lose tasks and get new roles, and go against each other to get a better role. We have three main problems, all the people have a problem with older people, competition in the workplace and the change process results in conflict situations.

Schweng: Employers actively try and harass older employees. The new procedures in place are not dependent on length of employment. Harassment can be due to conflict; it is an issue because no one wants to deal with it. Nobody is competent to tackle conflicts between two people in the workplace, but the employer has a duty of care. We should do more about the reasons for harassment, which means if you try and teach people about social acceptable behaviour, employers and employees, this could take them forward to avoid such conflicts.

Austrian Social Partners are presenting an initiative called Social Health – psychological and physical health – how do you deal with people on a day-by-day basis? We had a working group together with a trainer that developed training tools that could be used on an enterprise level. This is the right way forward how to deal with and avoid conflicts.

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The most important question is how employer reacts to harassment between one employee and another- does he dismiss the higher paid manager perpetrator?

Union role?

Mr Hoffman: the union must send a signal to the victim that we will listen to the problem and that there will be solution and consequences. It must be clearer that bullying leads to psychological and physical problems – depression and suicide. Sweden said every sixth suicide is regarding a workplace situation. We must inform employees, employers that this bullying and mobbing situations leads to a bad working climate. One way if to inform members of trade union and the people what happens if you are bullying your colleagues, and both parties are responsible for installing guidelines for dealing with such situations, and train. It costs time and money, but both parties must say it is worth fighting against mobbing.

Rights of the perpetrator? Confidentiality, impartiality and fair dealings. If victim is not satisfied with the outcome it goes to Court, and before going to Court the victim can go to ombudsman or equal treatment commission.

Mr Hoffman: Conditions must be fulfilled and it is very important that the conflict must be clear, mobbing actions must last more than 6 months, must be visible (goal to hurt people or keep them out of the group) and a medical certificate or opinion about the psychological or physical disorders. The process must be documented. It is more important to ask the victim did you inform the employer about the mobbing, so he can set some improvement in the workplace. If all these points are clear, another way to support the victims. 3 Workers Protections Health and Safety, is another small part of the legislations and law of protections. We try and find out what happens in the process and you have the chance to work with paragraph 3 protection.

Social partners of EU and national to announce their key statement – what are the options to implement the framework agreement.

Mag. Schweng: complicity needs to be done. An EU framework agreement is negotiated in English. To implement we deal with the translation. With the stress agreement it took us time to have the agreement in place and we have worked with German social partners to get joint text. I (personally) would be to have some sort of model for enterprise against harassment agreed with social partners. Other options, we have Works Council Agreements, we have some legal basis in place that can be used. In autumn we will see what the options will be, with the trade unions.

Harassment has changed in the last years; it is now taken seriously in the labour market. It is an affront to the dignity of the individual and the damages can be enormous. Focus of attention is widening to include human rights and dignity at work. The problems of harassment of cases are caused by the collection of facts. Sexual harassment, EC law, we can discuss those definitions for many hours. If the effects are clear, the most important question is what is to be done against the harassment. I hope the new framework agreement helps us combat harassment.

Questions

Finland: the agreement is not binding and does not contain rights. What are the legal effects of the basis of this document? It is employer‘s duty under health and safety at work law to take all necessary and reasonable steps to prevent harassment from taking place. In my country, it is not described in the law what those steps are. But when I look at paragraph 4 of the framework agreement there seem to be standards that could be applied in assessing whether the employer has taken the necessary steps. In a case in the court you have to develop standards in order to describe and apply to a case. In the law of torts or damages you apply the standard that has to be applied to prevent accidents from happening. That standard may not always be a binding legal one, but when not binding it is a guideline. If accepted by the social partners they seem suitable for this type of assessment.

Iceland: I do not know what steps to be take to implement the framework agreement. The EU directives are important and have been adopted by Iceland. We have very much safety approach to this

223 matter. We have a long health and safety in work places from 1980 and Art 38 was amended. In Art 3 there is to be found a definition of harassment – unacceptable conduct...discrimination...by this definition the system meets the general requirements but I don‘t know. Nobody could tell me at home anything about this framework.

Austria: These agreements bind the members. National practices are different country and country, case to case. I believe you can create standards by adopting some common form of models. If it is impossible; you have to look at culture of the enterprise and individuals. Have something in case harassment happens, but these are principles. ESP very cautious as regards the measures. A statement and the training helps. Case for case implementation method differs and also country to country.

First technical session

―Identifying the problem of Workplace Harassment.‖

Prof. Alan Neal

There is a problem about workplace harassment. What? When we compare the analysis this morning and instruments at the level of EU, there is not a wide spectrum approach under the 6 heads of discrimination set out in Art. 13 and those adapted to deal primarily with sexual harassment and labels of other harassment. There are problems of parallel, concurrent and related forms of discrimination.

How far can we go outside the gender harassment spectrum? Is this to be treated for legal and court proceeding purposes as very narrow or are we talking about a large problem where sexual harassment is one of the many aspects? We have more value looking at the bigger picture, but as judges, we will receive cases loyal to the EU version of a prohibited range. We will have to take into account the bigger, more complete picture, at the workplace, that may have more important drivers than just the narrow forms of discrimination. Very soon, we will be asked to fill in the gaps. If we are, there is a lot of help to be obtained from the framework agreement itself.

Part 1 of the Agreement relates to violence in the biggest sense as the consequences of unacceptable behaviour at work – forms of harassment and violence with no definition. We start off by using the word ―behaviour‖ can be one off or symptomatic. This morning or 6 months of activity before action in relation to mobbing. We have big problems in our judicial role as to the single occasional, programme of activity involving individual and groups.

Porcelli v. Strathclyde Regional Council [1986] ICR 564 (Scottish case) related harassment/less favourable treatment to sex. The actual behaviour was at the extreme end. The claimant was the recipient of comments made over a long period of time, which we would recognise as being outside the scope of acceptable behaviour today. Twenty-years ago sanction for this was on the border- line. This has moved on to recognising racial harassment. Protection was to be found in constitutional provisions on equality.

Is an outrageous act harassment if it was one incident? Semantics – not a debate that will detain us as very long. The European framework envisages once off events as harassment and/or violence at work.

Third bullet point – who is the harasser? Direct counter-part or patients and pupils? We are talking about behaviour amongst colleagues, superior and subordinates (the starting point is to ask about the inequality of power), or clients, customers, patients, pupils etc. It raises very interesting questions about the role of labour law, actors outside the core of the employment relationship, and we have to be careful where the line of responsibility lies. We are familiar with employer liability in the traditional models and it should be no difference for harassment where the person committed the act during the course of their employment.

But what if it is not approved of or condoned by the employer? Harassment is seen as a matter for the subjective judgment of the alleged victim. We have another person, in addition to the reverse

224 burden of proof. The nature of subjective tests is not an issue which should burden it, the decision for this test has already been made. The subjective nature of the perception of the victim is the thing that drives the violence in the workplace, something which we are not likely to go behind. But there could be a conflict between freedoms of expression, opinion, privacy. The terminology of fundamental human rights is recognised by all, and we have a serious question where the interface between protection from harassment and individual rights. The problem is not the right of harassment but the change of expected behaviour which follows from the impermissibility for certain actions designated as harassment – rightly to give rise to controversy. Are there limits - Freedom of expression or religion?

We are talking about cases ranging from minor cases of disrespect (something very trivial indeed) to more serious acts, including criminal offences, which require intervention by public authorities. The personalised to the socialised. This may be part of the answer to norms of a derogable kind. This is the general point in which our behaviours are to be identified. I have gone through examples in the national reports. Almost every one relates narrowly to sexual harassment. There are some examples in another report, the social partners, and a study on recent development at gender protection at EU level. Examples can be seen in Italy and Czech relating to the woman. In the early development we see classic problems – purported victim makes the allegation and we then come into a burden of proof regime requiring the claimant reaching a threshold before the burden of proof shifts. This is an area that we need to look at closely with our judicial functions. The nature of the subjective perception and wide notion of what could be harassment, other than sexual harassment, could be problematic. Could we treat the existing model of burden of proof to harassment? There have been problems because cases are dismissed for not establishing enough of a prima facie case. The only case is where the man kept a diary for 6 months with other one hundred documented events, and the court found that it was a likely more credible version of events than the explanation.

We see the problem of what is the period of time, a target or motive behind it with no provable nexus behind it? If we shift from equal opportunities the answer is clearer because there is a stronger obligation by the employer to take risk assessments. If you are on a building site and several accidents take place you don‘t have to show there is an underlining problem. The problem is that we are using equal opportunity module compared to a duty by employer to carry out risk assessment.

Duties for employers to make risk assessment, e.g. pregnant female employees, the failure of employer to carry out risk assessment, goes out to the root of the employment relationship and it therefore falls within the jurisdiction of the labour Tribunal. I tend to favour finding that bridge, but we may be called upon to creatively address the evidence. Under health and safety the employer will look at the totality effect on the employee. Why should we have to unravel when it is clear that I am suffering as a victim, harassment and violence in the workplace? This is a few thoughts on identifying the type of behaviour.

Questions

UK: The assembled group – a person has been harassed in the workplace on any definition, not physical violence, bullied or mobbed, not because of any particular discrimination characteristic. It is simply that person has been bullied, and has suffered immaterial damage. He remains in employment, could he come to the court either under an extend definition under equality act of health and safety. In UK, the answer is no.

Ireland: The answer to the question is it could succeed. It is important to put it into context. Somebody suffers unacceptable behaviour on part of a manager, it raised questions that the person may say it is because of a protected characteristic, but you then have the problem of proof and showing causal connection. If that‘s not the case, and it is gratuitous, there is a provision under our system where a complaint of bad practice on the part of the employer is brought into the system. There could be situations where a person brings a claim under contract law – duty to provider a place of work where health and safety is breached. Conceptually, the employer is obliged to protect workers against stressful behaviour on part of managers and they can bring such a complaint, outside the labour court context to bring a case in contract/common law. Bullying claims are common and frequently processed in our system. The difficulty is fixing employer with liability, and in that regard, it is difficult for employer to be vicariously liable unless the employer on notice of the behaviour and has had the opportunity to deal with it. The emphasis is to resolve the problem rather than apportion liability, by putting in place

225 arrangements that put the employment relationship back together again, so that the employee can continue in the working environment.

Germany: We only ask if there is harassment. The definition is not given by the directive, which covers harassment for sexual behaviour and so on. Our jurisdiction has enlarged it to all types of harassment. Who approves it? The directive is more favourable to the employer; it is always one that claims damage has to prove the facts. This is very difficult for the employee, which has to prove not only one event but that there is something like a red file – several events. A chain of events that gives proof, it is recommended that claimant should have a diary noting what has happened. I have a case of a diary of 600 pages going back to 2000 and it is very difficult to make evidence of this. It is always a problem for the claimant to prove it.

Italy: A problem. We have many important cases on the burden of proof. In Italian law harassment in part of discrimination and... It is possible for proof of harassment, e.g. I have 15 employees and a woman where burden of proof can pass to the employer on the basis of assumptions made. I don‘t know if we can transfer the burden of proof from discrimination to harassment. No judges have considered this at the moment.

Austria – Question to Italy, 14/15 employees and just one female employee is enough to shift the burden of proof? Is it something the Supreme Court decides or courts of first instance?

Italy: We have not a decision of a judge, any judge, at the moment. We have to take principle of community law from directives, but in all the directives. In very controlled facts it is possible to see discrimination. Lawyer must prove. In civil law the claim must be factual and describe important circumstances and the opposition must disprove this.

Germany: The cases we have are almost always just bullying – no sexual harassment. Discrimination a maximum 1%, a very rare case. Percentage of harassment claims is very low.

UK: we have a wide experience of dealing with sex and race cases. The appeal gives directions to the court of first instances because the person who brings the claim has difficulty in giving direct evidence of discrimination. The court should be looking to draw inferences, the first instance court listens carefully and analysis it astutely. A sophisticated approached taken for the problem of the individual claimant bringing a claim of harassment.

France: the burden of proof – the employee must prove, SMS messages may be produced, which is not the case for telephone conversation.

Hungary: in civil court employee can sue the employee who affected him or her. There are two kinds of harassment, burden of proof shifts and in the other worker has to prove he or she suffered harassment. We have a lot of harassment cases, not on the ground of discrimination, most of the time linked to claims to dismiss, wages and so on. It is not a stand-alone.

Austria: mix up between discrimination and harassment. There are other forms of discrimination on the one side and harassment on the other, harassment without any grounds or reasons. One worker could harass another worker because he doesn‘t like him. In the labour court this could be harassment but it is not harassment due the directive. If the same thing happens to the woman it will be harassment and discrimination, but not every harassment amounts to discrimination. We need to make a distinction. There are differences especially concerning the burden of proof.

UK: I now read the decision of first instance judges. She was a black woman in a small workplace who was not invited to lunch or coffee by 3 women who chatted and talked amongst herself. She proved she had suffered this form of isolation, that she was the only black woman and the only person excluded, and this permitted us to draw the inference and the burden of proof shifted. The employer won and they produced a white woman who said it happened to me while I was there – it was not because she was black and not on the grounds of race. She lost. They didn‘t need to get to know her because there were three of them.

226 Hungary: It couldn‘t happen here because an employer has a liability to organise her workplace or not let someone to be isolated.

Iceland: A new judgment of the Supreme Court passed on last month in June – it is mentioned in my report. SMS was mentioned but the internet is of very importance. The case was about dismissal. An employee was dismissed without notice. The employer through the employee had published something on the internet, a special website, the employee and his sisters etc had access to and write whatever they wanted. Comments about a manager were published and people were encouraged to telephone the manager day and night. The number of the employee was published on the website. The Supreme Court held employer had to prove the employee had made the comment in question, or that he was responsible for his publication. The employer had not made an effort to investigate and could not claim the employee had not made the comments. His first name was written as text and he had access to it, and the employer‘s case was thought to be unproved. The employer was ordered to pay the employee pay on notice, 3 months contractual notice pay.

UK: The synthesis – there are a lot of examples that could be fitted into different parts of the definition. Iceland – the case was finished with the workplace being changed. The simplest way of dealing with a harassment case. Many employers are reluctant to move a manager and will move a subordinate, possibly to a less responsible job. That person may not be respected by that employee being foistered on them. A company made a public list of employees off sick, it comes into an action between superiors and employees and the authority found that it was harassment actionable outside the definitions. The third case was when a doctor of a school asked a pupil if she was a lesbian, but there was no intent to create a hostile environment, it is a bad question. A minor case of disrespect, at one end of the range of harassment. It depends on what it is. Are you not allowed to go to lunch with who you want to go to? Tunde says a good employer would address it, but is creating a new area of liability in the workplace, that could be going too far. The fourth case is not harassment, but the right of an employee to manage. An employee can see that as harassment when they are told they were not working well and must improve. There are many factual ranges within this definition that may lead to action. From the synthesis there are not many cases where employees succeed for minor cases of harassment, but there are more serious cases where the proof is not there.

Italy: UK – who was the respondent?

UK: The respondent was the employer. Sometimes employees don‘t complain at the time, before she can claim she needs to make a written complaint and wait 28 days before bringing a complaint.

Italy: If they were 50 persons? And only one was outside? The employer won the case, there was a justification, but if claimant won what could have been done in order to make the working environment work?

UK: A group of 50 is not minor; she would have won the claim. Remedy is twofold – a declaration that it is unlawful harassment on the grounds of race, she would get money from the feelings she has suffered that would be paid by the employer and employee could be ordered to pay a percentage . We could make a recommendation that they have training and supervise it in 6 months. We don‘t do it very often. If she is still in employment, it is a worthwhile thing to do. The reality is that she would leave – experience shows this. That is why we need to catch it earlier.

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SECOND TECHNICAL SESSION

―The effectiveness of National Legislation in combating hararassment.‖

Taco: How can we have a more effective system and what can we learn from each other? Which type of effectiveness can we distinguish? A certain system and a certain type of regulations and procedures can be very effective and produce a better working environment. The micro approach to effectiveness. As judges we have an impression. We can look at the individual level – how effective is my system for an individual who has suffered from harassment?

I look at the Questionnaire for the effectiveness. Could it be non-statutory regulation could be very helpful in a general approach in creating a safer environment in combating harassment.

The institutional framework? Are they more or less effective? Procedures are necessary; sometimes the rules for procedures are a nuisance – are they effective or are changes needed? Remedies and sanctions – we could ask ourselves would we like changes in order to get a good image of the system as it is. Look at whether there is a good example from your own system as a basis for discussions and the exchange of information.

Question: What do you find is the most problematic in your own system from the point of view of effectiveness? Cases that you have before you and that you have seen in your Country. What would you have changed?

Italy: Protect workers against harassment. It is a very complex system to find against discrimination. All people in the network must recognise all the cases. It is not an effective system. Only 5 percent of cases are discrimination. It is not effective because lawyers prefer judge to the administrative person. The system has good support, it doesn‘t work despite the fact there is a system of expertise in the community. It is a twenty-year system, and has changed with the EU directive.

Community produced by collective agreement is the same, not effective, because they are not real in the minds about their objective.

Taco: Does somebody else regulate this, where a system does not work because it is not sufficiently known or lawyers prefer to go to the Judge?

UK: if there has been harassment in the workplace, before they can make a complaint that have to make an internal grievance. Parties comply with it, but still want to go to the Tribunal. The adversarial system for resolving cases is badly suited to cases such as harassment where there is no deliberate motive to harassment. The internal grievance systems are usually laborious with several levels of appeal and by the time it‘s concluded they just want rid of the employee – everyone is exhausted. How successful is judicial mediation in Germany in dealing with harassment.

Germany: It is very successful and 60/70% of cases are settled. In discrimination the chance of settlement is zero because of the hurt. In the first hearing we are only 20/30 minutes to talk with them. In the cases of harassment you need to work on the people and to try and find out the reason and motivation. In some courts you can offer mediation, but it costs lots of money. Our normal efforts are not successful in this point of view. Mediation for harassment doesn‘t seem to work.

Taco: there has been a report on the amount of harassment. Finland and the Netherlands have the highest level, we don‘t know why – could be sophisticated lawyers who know where the money is? In Czech Republic you do not have so many cases. Is there an explanation? Certain obstacles in the system?

Czech: There will be more cases in the future.

Taco: In the legal culture how much are people inclined to complain? The case in the EU court about maternity leave for example.

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Slovenia: We have only a few cases on harassment. In 2003 the case‘s main issue and main problem was a father and maternity leave, and in the law there was no right to paternity leave. It was introduced by the Court, an international legal act. He won. Discrimination based on sex. There are special provisions in our labour court that procedures should be applied to an employee who wants to dismiss an employee.

Taco: Courage of the court and this one man.

Finland: I am not sure what the high harassment statistics are supposed to describe. The situation is different to Italy; we have very little court practice concerning harassment. Only a few claims are brought in the court. The labour inspectors are quite occupied with harassment cases, and there is special staff who deals with it.

Taco: That is probably the source. It is not about court cases. Because your labour inspectorate is so active, it brings it out.

Finland: two conflicting statistics, labour inspectors are active and do manage to settle a large proportion of harassment cases. It is possible; it is an easy way for workers to have their problems explored. It is informal, and contact the labour representative is in an informal way. Harassment is defined as a health and safety problem. Another explanation may be that litigation is not as effective and not as tempting for workers suffering from harassment, it is a long process and the outcome is rather meagre. The sanctions are modest, compensation awarded is small.

Taco: health and safety is effective in Finland, very active in the field of harassment a good means to solve problems.

Hungary: We need to be careful about the statistical data; it can be interpreted in the wrong way. In Hungary there have been a lot of harassment cases. In Finland you have the same – what is the reason why the people don‘t go to the Court but go to the authority. It would be better for somebody fighting for them to receive damages, the authority‘s fine and punish the employer, but it is not a real remedy for the employee. One of the reasons is expense, I see sometimes people starting under health and safety and if successful they come to the court because they don‘t want to risk.

Taco: refrain from court because of cost and risk, going through informal procedure first. Happy or another solution?

Hungary: Formal or informal way. In Hungary we haven‘t a strong informal way. We have some mediation.

Belgium: Expensive and precise legislation encourages use of the internal procedure with special provisions with a confidential advisor. Prevention and consequences of harassment in the workplace are dealt with. Matter can be referred to the inspectorate where the harassment continues after it has been reported to the employer and the employer fails to take appropriate measures, the prevention advisor refers the matter to the labour inspectorate from the Federal Public Department of Employment and Work which has responsibility for monitoring of legislation.

Taco: If you were legislature, would you keep the system.

Belgium: It is good on the preventative.

Taco: Advisors in each firm, you don‘t seem to have the problems mentioned by Michael earlier.

Taco: Ireland – how does one know what system to use? The strong and weak points? The shop assistant example was fascinating.

Ireland: Difficult to navigate around the system. Harassment and bullying, there is a distinction between claims brought under equality legislation and claims brought under the industrial law legislation. If they are claiming bullying and harassment other than termination, they can bring a claim

229 alleging employer guilty of bad practice, and a recommendation is issued as to how it is to be dealt with. The focus is to rectify the situation so that a person can resume the job.

Taco: focused on solving the problem.

Ireland: mediation. Difficulties can arise where the victim is more damaged by the proceedings; they are looking for somebody to be held liable and are not open to mediate. Generally, the focus is to bring on a settlement via industrial relations system. Redress for a wrong committed. The shop case was a case of sexual harassment, very serious. She did not have a qualifying period for unfair dismissal, and it became an equality case because she was sexually harassed as a woman. The manner of the investigation gave rise to victimisation because she complained about sexual harassment and ended up being accused of sexual harassment. It came down to who you believe the claimant gave evidence and the manager wasn‘t called to give evidence. It was down to her evidence and it was relatively easy to come to the conclusion that her version of events was correct.

Taco: rules for employers how to deal with harassment cases like this? For example, rules to make a correct investigation in this case and therefore you have to pay compensation.

To summarise, we started out with identifying certain problems, pre-judicial procedure in England, Italy committees and Germany settlement in Court, but they didn‘t seem to work properly. On the other hand, we have Finland safety and health approach and Belgium input of the advisors in the company and Lithuanian example of application of EU law and giving the rights to individual, rights not included in the national legislation. We have a very extensive legislation in safety and health, including harassment, where labour inspectorate and social partners sit at the table together to make non-binding agreements on how to implement legislation on harassment. It seems promising. In Dutch law, the civil code holds the law in the employment contract and the employer is liable for any damage caused to the worker due to unsafe or bad working conditions. There is heavy burden of proof on the employer, the employee has to provide evidence that something has happened to him in the work, and the employer must prove he had met health and safety conditions. This may be the basis for creative judgments.

CONFERENCE DAY 2

Opening address by Austria

Third technical session ―The place of non-statutory regulation in addressing the problem of harassment.‖

Kevin Duffy, Ireland

The Labour Court has a role in good practice and resolving disputes not necessarily covered in the legislation. This is Important when we are looking at the options available to the agreed parties when we have harassment.

Yesterday we talked about remedies and the procedural routes available, and in the majority of member states, these issues are dealt within the Equal Treatment framework with the possibility of

230 health and safety. There is a difference between these types of issues and the generality of equal treatment issues. E.g. in equal pay claims the employer is responsible, but in cases of harassment frequently it is perpetrated by one employee on another, and the employer is not a direct party and can only be established liable if it is found culpable in some way. The employee cannot be held liable in our system, only the employer. There were difficulties in holding employer vicariously liable for the conduct of an employee, where that conduct was not committed in the course or scope of that employee‘s employment. One High Court decision held where an employee was subjected to a particularly serious sexual assault, the conduct was so outrageous it could not be held to have occurred within the employment and the employer was not fixed with liability. The law has since changed, and in all situations where an employee is subjected to unwanted conduct, the employer is automatically liable unless they can show that they took reasonable practicable steps to prevent the conduct. There is a duty that the employer has practices to prevent conduct, there is no remedy if they do not, but they could be held liable for an employee‘s conduct if they do not.

Standard of proof – how to prosecute a case and remedies is very important. In Ireland the purpose of the legislation is to prevent acts of harassment and ensure employees are provided with a place of work free from harassment. When the cases come to Tribunal harassment has already taken place. If it does happen our procedures try to deal with it without the necessity of going to court. There are a variety of mechanisms. Recommendation 92/131 addressed to employers, institutions and workers representives providing guidance on how harassment in the workplace can be dealt with.

In Ireland we have code of practices; e.g. if there is a constructive dismissal and if the employer doesn‘t have a code of practice this is taken into account. There is a code of practice on bullying entered into with consultation with social partners. Employers are expected to have in place a procedure to affect the general principles enshrined in the code of practice. These days‘ employers have in place dignity at work policies – sexual harassment, equality issues, bullying (mobbing), and harassment. The Dignity at Work Policy should be negotiated and agreed with the trade unions. That policy must do a number of things:

1. Make it clear harassment of any kind is unacceptable and will be taken seriously. 2. It sets down the procedures to be followed where there are complaints of bullying or harassment.

The framework agreement is very much in line with the Dignity at Work Policy. The framework agreement has not formally been adopted by Ireland, but in reality it is already in place in the form of the Dignity at Work Policy. It is important to look at the document and to what extent are the general principles already there in the member states, by collective agreement or whatever.

The dignity at Work Policy

1. The aim of the document is to prevent the occurrence of unacceptable degrading or demeaning conduct in the workplace. It is clear from the aim of the Agreement it is to increase awareness and understanding- to create a culture of rejection of this form of behaviour, and then to provide an employer an action orientated framework to prevent and manage the problems when they arise.

2. The description we recognise – it can be worker to worker, management style and it can take many forms, verbal non-verbal, physical, manifested in an attitude. It can take many forms. The conduct which is hostile, affects the dignity of workers at work is harassment and is unacceptable.

3. Preventing or identifying it, there is a need to provide training to ensure that people are aware of what constitutes harassment. It should take place as part of the induction programme. I have come across cases where it was necessary to go into the questions whether the employer had practices to avoid liability and the employer produced an excellent policy but very few knew about it. It is important employees ensure they understand the policy‘s importance or the people are told that it is important and what it contains, told to take it away and read it. Training is important.

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4. It is also necessary to have in place procedures dealing with an allegation of an infringement of a policy. It is necessary to have in place clear and fair procedures for dealing with these types of disputes. In any complaint there are two characters – the victim and the accused. In the investigation of the matter is clearly important to be fair to both sides. The person against whom the allegation is made is entitled to fair procedures and a presumption of innocence. They should be protected against false allegations. The investigation is envisaged in the framework. It is best to try and deal with the problems without embarking on a formal investigation. If the problem is nipped in the bud it is far better. The perpetrator may not realise they behaviour is giving rise to offence, in many cases it will cease. Counselling and taking somebody to one side can work in some cases. Comments, use of offensive language – people can be told please don‘t use that any more.

5. If it continues or the conduct is more serious and not amenable to informal solutions a fair and effective investigations must take place, and there should be people with skills and training to undertake the investigation. If the skills are not available an external investigator can be involved, and frequently are in Ireland. This is appropriate where an allegation is made against a senior member of management. There must be a clear procedure with no element of ad hoc and with great respect of the confidentiality of all of the matters that come up. It should not be delayed because they have to be dealt with quickly to avoid a more difficult situation. It may be possible to make temporary arrangements, For example, it is unacceptable to leave the victim working under the alleged harasser. Information must be provided to the accused person, and they must be given an opportunity to defend themselves. False allegations will not be tolerated, to protected employees against false and/or malicious allegations. When the investigation concludes appropriate actions should be taken – disciplinary sanction where a complaint is made out.

6. False allegation is the language used in the framework – frivolous or vexatious allegations – where somebody makes an allegation where there is no basis whatsoever. This is not where they genuinely believe that there has been harassment; to be otherwise would be a deterrent. Where the allegations are vexatious, malicious, done for the purpose of getting at an individual and there is no reasonable basis for the allegations itself.

The purposive objective is that an employee can work without the fear or being harassed or bullied. I am not sure what legal effect the Agreement will have, but is intended to assist employers and trade unions in drawing up agreements and putting them in place, contractually so that people have a right. The breach of the procedure in itself will not give right to a cause of action, but it may have consequences in other areas.

The questions arises – how do we make all this happen? We have to have a mechanism in place, systems where agencies promote the adoption of procedures, employer‘s organisations and trade unions have a major role. In our system there are avenues available. Rights Commissioner to the Labour Court, and we will look at the good practice. We will not engage in the de novo investigation of the allegation. Our role is to ensure the procedures are in place and they are properly followed. If it goes to dismissal it will go to the Employment Appeals Tribunal, if it doesn‘t go that far it will be dealt with by the Rights Commissioner. We are not imposing legal sanctions but making recommendation e.g. where investigations has been conducted internally it may recommend the investigation to be re-run with an external person and nominate that person. This applies in area other areas, sex discrimination etc, can go to the Equality Tribunal.

To what extent are the types of agreements envisaged in the framework?

UK: In analysing the responses to the questionnaire and Kevin‘s helpful analysis there are references to investigations, investigation offices and in Belgium, to the prevention consultant. In UK the investigation is a negative rather than positive response. In large institutions an allegation of harassment results in a massive investigation takes 6 months with 25 people asked for their views, increasing the profile of the complaint. How does the business of a prevention officer work in practice on Belgium?

232 Belgium: Violence and sexual harassment can be investigated internally, failing which employers can go to an external investigator, complaints resolution, and an informal reconciliation. The victims can complain to an external prevention service, The costs and remunerations for external services are borne by enterprises and employers". If mediation doesn‘t work it can go to the court.

Q: Prevention officer provided by state agencies?

Finland: State provides it.

Q: responsibility of employer to invite prevention officer in?

Finland: In many of the Nordic countries, these kinds of services can be provided by occupational health and safety services that have to be arranged by employer. May be in company services or bought from an outside services provider that has medical and technical expertise. There are no specialist officers dealing with harassment but there are work psychologists dealing with these sorts of problems invited to the workplace, trying to find out the reasons of a problem and a solution. The enterprise makes an agreement about these healthcare services.

Italy: We have national committee and there are some institutions that prevent harassment – inspector level, under the authority of Ministry of Level. There is a local advice role for the problem. The violation of the discrimination law is a criminal violation. We have an organisation made by collective agreement that provide against discrimination. This is very important for collective agreement. The problem is not the group prevention against harassment and discrimination because there is not a general agreement about what is the correct investigation in these cases. Every community must organise itself, but there is general option of organisation. This is a problem.

Italy: In 2006 we have had a Code of Equal Opportunities, which deals in the same act with discrimination – it provides for a councillor who in all regions is a woman. It is not a body but a person. In harassment situation she can act and assume in the Tribunal instead of the person harassed. In collective harassment she can prepare a statement for the judge that can be used in similar situations. The council of equal opportunities will not deal with harassment but equal opportunities. They will obtain statements and award a criminal fine for discrimination in selection of workers. There is a statement of pregnancy leave and employer who doesn‘t provide for part-time jobs. In a previous case the maternity leave – she will in time intervene in the firm before the workers sue in a positive action to remove the harassment situation.

Netherlands: Alleged perpetrator – the right to defend himself against false accusation. How this right relates to the reversal of the burden of proof in the Equal Treatment Directive? If the victim goes to Court, there is no fool proof I am innocent but there is sufficient evidence for the reversal of the burden of proof. Good to extend this to other situations of harassment and bullying. I see a problem and possible conflict for the accused and a right to a fair trial. Don‘t I have the right to defend myself against false accusations and a right under Article 6 of Human Rights – I am innocent.

Ireland: Very important issue. The person is accused, under the normal principles of human rights, there must be a presumption of innocence. I was talking about internal investigation and there is no rule on the burden of proof, or where the burden lies at all. A more inquisitorial approach is adopted – the investigator carries out an investigation to try and discover the factual situation. The accused need to know who their accuser is, the basis upon which the accusation is made (what they have alleged to have done, to who and when). Burden of proof denotes an adversarial approach rather than inquisitorial.

Within the court system, the claim is against the employer and the perpetrator is often a witness and not directly accused in the formal sense. In what circumstances does the burden of proof shift – whether the alleged harassment is capable of proving a cause of harassment to the alleged victim e.g. Asian person or friends? It would have to be established by claimant that an act capable of constituting harassment did in fact occur – inferences. The claimant must have actually suffered that what they alleged to have suffered. It is not to say that the accused person has to disprove the allegation. They may have to disprove the presumption that less favourable treatment was on the grounds of behaviour etc. If it was just bad behaviour, issues arise as to whether it fits in under the

233 equal treatment directive, this is another matter and this is where the burden of proof comes in. A discriminator rarely admits to discrimination, even to themselves. The difficulty is not proving what they did, but why they did it. The onus is on the claimant to prove that which they complain of happened.

Austria: Burden of proof is before the court but not the enterprise as long as there is nothing in the collective agreement etc. False allegations will not be tolerated – we cannot count on the employee/worker being an expert on community law. False allegations means false effects.

Iceland: We do not have a special institution to deal with those things. Nordic countries have a similar approach. In the law on working environment – Art 38 of this Act, a special regulation from 2004 I mentioned yesterday has been issued on measures against harassment in the workplace. In Art 6 of this regulation, it says employee that has been a victim of harassment at the workplace should inform their employer about this, and he should be ready to explain everything about this matter. In Art 7 there are views about what the employer should do in the situation, he shall as soon as possible to deal with this problem in a similar way as Kevin described. He is complying with this framework agreement.

Ireland: Codes of Practice were brought in 2008. The constructive dismissal – the cause of practice against bullying and harassment came in 2002 and say that things should be done quickly, but the cases we are getting are long standing. In the education sphere, 20/25 years, so you have complaints being made now. We have the difficulty of getting a description of the types of bullying and harassment so that the perpetrator can be advised of the specific allegations. This is a difficulty. There is a tension between expediting a matter and making sure that you have done the job properly. In relation to prevention, what is meant? Harassment comes to light when it occurs. It can only be prevented though education. Bullying and harassment are synonymous. They don‘t just suddenly become a bully; they are a bully before they come into that environment. It just doesn‘t arise when they come in, and it will be difficult to stop people like that starting. Prevention – go to schools and tell people about bullying and harassment in the workplace? I had one case where the bully was a caretaker and the victim the deputy headmaster that went on for 20 years.

On the later point, prevention is really what everybody wants to do, and if it ends up in an investigation or court there has been a failure. It is important to set down the rules. 20/30 years ago many things were acceptable in the workplace that is not acceptable now. In recent years we didn‘t have a multi-cultural society in Ireland up to 5/6 years ago. We had a lot of immigration and it was necessary to set up rules as to what is acceptable language and conduct in a multi-cultural environment. The same may be true 15 years ago on harassment under gender grounds – language and physical contact. People had to consciously say this is not acceptable and set down the rules, clearly and then explained in clear terms to people at commencement of their employment. They should now to be told that certain language and behaviour is not acceptable. In most countries there are state agencies challenged with promoting equality, as required by the Directive. These are focused on equal opportunities and harassment. Promoting general good practice where there wasn‘t anybody with specific responsibility before that, it is for the employers and trade unions to put in place. If they do not, there are limited responsibilities for dealing with that. We need to wait for developments in that area and it needs to be monitored closely.

234

PLENARY SESSION

FEEDBACK, SYNTHESIS AND CONCLUSION

During these two days we have had very good discussion on harassment – it is not my idea to make a synthesis of all the ideas discussed.

Identifying the problem, as a point of departure, the big achievement of harassment legislation is that we have a name for phenomena we didn‘t have in previous years. With this regulation we have legal definition and protection against harassment. There are 2 basis approaches to harassment:

2. Harassment which is discriminatory based on prohibited grounds of discrimination, mainly sex. This is applied in all our countries, follows from the EU directives and we have the regulation in place in all member states. We have the reverse burden of proof.

3. Health and safety at work model, that covers bullying and mobbing. Not all countries seem to have this mechanism. In other countries there are general harassment and bullying that have important legal consequences attached, different remedies and institutions dealing with this. Alan took up risk assessment yesterday, a legal duty of the employer defined in the EU directives and is in place in all national safety regulations. They are to identify a certain health risk and assess its seriousness. Prevention is what Kevin emphasised today. The employer cannot evoke ignorance of health risk to avoid legal liability, if a health problem has occurred and a risk assessment has not been carried out. Risk assessment can be important in the context of preventing harassment. Risk assessment is not automatically concerning all possible health and safety risk and all at work risks. We do not deal with biological agents; this means that before you have to lay social emphasis on harassment there would have to be complaints of some other symptoms of the problem before it becomes a duty to assist this risk.

UK: The starting point was the use of risk assessments in relation to pregnancy cases where a number of problems had not been identified by the employer – question was how could employer take more proactive steps and look at issues. It is issue and consequence assessment. It has extended beyond pregnancy on cases of stress, so that the courts have said the failure by the employer to carry out the required risk assessment (amended Health and safety directive) is a fundamental breaking of the duty and give rise to a number of possible actions that can be brought to the labour court. It may be one way of making employers ask the questions, to avoid the problem saying nobody told me, when everybody objectively was aware of the problem.

Remedies: we haven‘t had a session; we discussed it during the 2 days. What interests me is the level of remedies in various countries, concerning monetary compensation. In all countries there is some sort of monetary compensation awarded to victims of harassment and material losses such as suffering of the victim. The level – quick round the table discussion – what is awarded in a typical harassment case?

UK: We have the highest level of awards, where the harassment is actionable there is no limit on the award and if you have lost your work, suffered depression and out of work we will compensate you for your loss of earnings, psychological harm and injury to feelings. I have awarded in a discrimination case in which parts were harassment one and a quarter million ponds, twenty-thousand injury to feelings, two years back pay and future loss. Average award in the discrimination cases is between £3K - £5K altogether for injury to feelings alone, and not including financial loss.

Malta: no award for injury of feelings. Maximum £2-4K Euros.

235 Italy: no fixed measure. 50 percent of the salary for one year of the harassment – only a solution, it depends on the case and whether it is serous or not.

Germany: We have no limitation – can be compensated for all damages that arise in the future. General obligation for employer to compensate for all future losses in harassment cases, the claimant has to prove the causal link which can be difficult. One case was 10K Euros for immaterial loss, but not material loss because he was not able to prove material loss.

Q: Germany cannot award compensation for unfair dismissal, must be re-instatement but compensation can be agreed instead. If harassment results in loss of employment you can order re-instatement.

Germany: In both cases financial compensation can be ordered. If dismissed, this has to be justified. Financial compensation can be awarded if a person loses his job.

Ireland: Different of rules regarding compensation we can award and the labour court can award. In cases of equality legislation the labour court can award compensation it consider to be fair and equitable up to a maximum of twice the annual salary earned e.g. 40K euro per annum amounts to 80K It can be taken to the circuit court where damages are unlimited. We compensate the effects of discrimination, including medical expenses. Even if there is no economic loss, the jurisprudence provides that we make an award that has a proportionate effect. The awards are about 40K euro.

The Tribunals maximum award is 2 years. It doesn‘t prohibit somebody who has been psychologically damaged from taking a case in the civil courts. They will have a claim for injuries in the civil court running concurrently with an unfair dismissal claim in the labour courts.

Finland: 5000 Euros is an average.

Iceland: Threshold of immaterial damage is high, amounts limited to 2000 euro. Often cases like that leads to dismissal and the compensation and severance payment could be higher. It is hard to put any amount to, if somebody hadn‘t working for 20 years they would get 100,000 euros.

Netherlands: no limit; depends on each individual case.

Czech: no average

Estonia: …

Lithuania: average amount is around 4000 euros; pecuniary compensation depends on the loss of a person.

Lux: Don‘t have many case of harassment yet. One 2003 case of sexual harassment – 2500 euro‘s for immaterial damage, no material damage. Also where a female employee was sexually harassed for 2 years awarded two and a half thousand euros, including ten thousand euros for immaterial damage.

France: sexual harassment three thousand seven hundred euros for harassment and for dismissal the minimum was six months of her salary.

Iceland: I don‘t have any statistics because the labour court doesn‘t deal with these cases; it goes to the general court. There is no limit of the amount, it will follow general principles. 2 to 3,000 euros.

Austria: we have no maximum limit for compensation for material and immaterial damage, minimum of 720 euros for the later. The maximum amount was 4000 euros 10 years ago, which is not representative because there have only been a few cases since. Recently the

236 Supreme Court had to decide another case of sexual harassment – touching the knee of the employee, over a period of a few weeks. This came to 1500 euros, granted at first and second instance, and Supreme Court agreed.

Hungary: material and non-material damages, there is no limit for the latter. The court needs to measure the circumstances of the case, how did it effect life of the employee, and how many people got to know about it. General rules is that it should not be too extreme because you can‘t compensate it with money.

UK: Non-material damage awarded at £75K a few years ago and the higher court said £500- £5000 for not so serious, £5-15000 for middle seriousness, 15-25000 for the most serious.

There is quite a wide range there, compensation for immaterial damage, the amount is a symbol of the seriousness. This is not a statistical exercise.

Hungary – closing the conference. We shared each other‘s experience and solutions and I have to thank Marlies and Gerhart. Many thanks to those who organised this conference.

END OF CONFERENCE

237 APPENDIX VI

FRAMEWORK AGREEMENT (Word Version)

VINTRODUCTION Mutual respect for the dignity of others at all levels within the workplace is one of the key characteristics of successful organizations. That is why harassment and violence are unacceptable. BUSINESSEUROPE, UEAPME, CEEP and ETUC (and the liaison committee EUROCADRES/CEC) condemn them in all their forms. They consider it is a mutual concern of employers and workers to deal with this issue, which can have serious social and economic consequences.

EU1 and national law define the employers’ duty to protect workers against harassment and violence in the workplace. Different forms of harassment and violence can affect workplaces. They can  be physical, psychological and/or sexual,  be one off incidents or more systematic patterns of behaviour,  be amongst colleagues, between superiors and subordinates or by third parties such as clients, customers, patients, pupils, etc.  range from minor cases of disrespect to more serious acts, including criminal offences, which require the intervention of public authorities.  The European social partners recognize that harassment and violence can potentially affect any workplace and any worker, irrespective of the size of the company, field of activity or form of the employment contract or relationship. However, certain groups and sectors can be more at risk. In practice not all workplaces and not all workers are affected.

This agreement deals with those forms of harassment and violence which are within the competence of social partners and correspond to the description made in section 3 below. 2. AIM The aim of the present agreement is to : 1. increase the awareness and understanding of employers, workers and their representatives of 2. workplace harassment and violence, 3. provide employers, workers and their representatives at all levels with an action- oriented framework 4. to identify, prevent and manage problems of harassment and violence at work. 1 This includes amongst others the following Directives: - Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin - Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation - Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the

238 principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions - Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work 3. DESCRIPTION Harassment and violence are due to unacceptable behaviour by one or more individuals and can take many different forms, some of which may be more easily identified than others. The work environment can influence people’s exposure to harassment and violence. Harassment occurs when one or more worker or manager are repeatedly and deliberately abused, threatened and/or humiliated in circumstances relating to work. Violence occurs when one or more worker or manager are assaulted in circumstances relating to work. Harassment and violence may be carried out by one or more managers or workers, with the purpose or effect of violating a manager’s or worker’s dignity, affecting his/her health and/or creating a hostile work environment. 4. PREVENTING, IDENTIFYING AND MANAGING PROBLEMS OF HARASSMENT AND VIOLENCE Raising awareness and appropriate training of managers and workers can reduce the likelihood of harassment and violence at work. Enterprises need to have a clear statement outlining that harassment and violence will not be tolerated. This statement will specify procedures to be followed where cases arise. Procedures can include an informal stage in which a person trusted by management and workers is available to give advice and assistance. Pre-existing procedures may be suitable for dealing with harassment and violence. A suitable procedure will be underpinned by but not confined to the following: It is in the interest of all parties to proceed with the necessary discretion to protect the dignity and privacy of all  No information should be disclosed to parties not involved in the case  Complaints should be investigated and dealt with without undue delay  All parties involved should get an impartial hearing and fair treatment  Complaints should be backed up by detailed information  False accusations should not be tolerated and may result in disciplinary action  External assistance may help.  If it is established that harassment and violence has occurred, appropriate measures will be taken in relation to the perpetrator(s). This may include disciplinary action up to and including dismissal.  The victim(s) will receive support and, if necessary, help with reintegration.  Employers, in consultation with workers and/or their representatives, will establish, review and monitor these procedures to ensure that they are effective both in preventing problems and dealing with issues as they arise.  Where appropriate, the provisions of this chapter can be applied to deal with cases of external violence.

239 5. IMPLEMENTATION AND FOLLOW-UP In the context of article 139 of the Treaty, this autonomous European framework agreement commits the members of BUSINESSEUROPE, UEAPME, CEEP and ETUC (and the liaison committee EUROCADRES/CEC) to implement it in accordance with the procedures and practices specific to management and labour in the Member States and in the countries of the European Economic Area. The signatory parties also invite their member organisations in candidate countries to implement this agreement. The implementation of this agreement will be carried out within three years after the date of signature of this agreement. Member organisations will report on the implementation of this agreement to the Social Dialogue Committee. During the first three years after the date of signature of this agreement, the Social Dialogue Committee will prepare and adopt a yearly table summarising the on-going implementation of the agreement. A full report on the implementation actions taken will be prepared by the Social Dialogue Committee and adopted by the European social partners during the fourth year. The signatory parties shall evaluate and review the agreement any time after the five years following the date of signature, if requested by one of them. In case of questions on the content of this agreement, member organisations involved can jointly or separately refer to the signatory parties, who will jointly or separately reply. When implementing this agreement, the members of the signatory parties avoid unnecessary burdens on SMEs. Implementation of this agreement does not constitute valid grounds to reduce the general level of protection afforded to workers in the field of this agreement. This agreement does not prejudice the right of social partners to conclude, at the appropriate level, including European level, agreements adapting and/or complementing this agreement in a manner which will take note of the specific needs of the social partners concerned.

John Monks Philippe de Buck Hans-Werner Müller Rainer Plassmann General Secretary Secretary General Secretary General Secretary General of ETUC of BUSINESSEUROPE of UEAPME of CEEP (on behalf of the trade union delegation) THE CONFEDERATION OF EUROPEAN BUSINESS Av. de Cortenbergh 168 1000 Brussels www.businesseurope.eu EUROPEAN ASSOCIATION OF CRAFT SMALL AND MEDIUM-SIZED ENTERPRISES Rue Jacques de Lalaing, 4 1040 Brussels www.ueapme.com EUROPEAN CENTRE OF ENTERPRISES WITH PUBLIC PARTICIPATION AND OF ENTERPRISES OF GENERAL ECONOMIC INTEREST Rue de la Charité, 15 1210 Brussels www.ceep.eu EUROPEAN TRADE UNION CONFEDERATION Bd. du Roi Albert II, 5 1210 Brussels

240 APPENDIX VII – Implementation Report

Not available in electronic form.

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