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Employer duty to investigate suspected harassment (Ombudsman for Equality, TAS 30/2023, issued on 05.06.2023)

A and eight other persons requested that the Ombudsman for Equality investigate if they had been subjected to sexual harassment at the workplace. The applicants of an opinion described how an employee in a supervisory position had subjected them to sexual harassment. The sexual harassment included, inter alia, sexually suggestive gestures and facial expressions, obscene talk, dirty jokes, comments about appearance, touching and hugging. 

Assessment of the case

According to section 8d of the Equality Act, the action of an employer shall be deemed to constitute discrimination prohibited under the Act if, upon receiving information that an employee has been a victim of sexual or other gender-based harassment in the workplace, the employer neglects to take the steps available to eliminate the harassment. An employer must secure that an employee is not faced with sexual or gender-based harassment in working life and intervene, with sufficient measures, if harassment takes place. It is the duty of the person subjected to harassment to inform the harasser that their activities are unwanted. An employer representative, trustee or occupational safety and health representative can also be informed of the harassment. When an employer's activities are assessed, it can also be determined if there are guidelines in place at the work place for incidents of harassment and, if so, how well information has been provided about them. 

It is a case of harassment, where the perpetrator knows or should have known after exercising good judgement that their behaviour or actions are unwanted. The basic precautions of preventing and avoiding harassment include taking other people into account and respecting peoples' freedom and autonomy.  In this case, the supervisory position of the person suspected of harassment means that they have a special duty to behave in an exemplary manner and to ensure that the workplace culture is safe and everyone can feel comfortable, people behave in a decent manner and no-one is subjected to harassment or inappropriate treatment of another kind. In the Ombudsman for Equality’s opinion, the person suspected of harassment should have understood, based on normal judgment, that dirty jokes and similar behaviour do not belong to the work place.

The burden of proof is transferred to the employer when there is reason to suspect that an employee has been subjected to harassment at the workplace. The employer has an opportunity to prove that they have met the obligations of a diligent employer. According to the Ombudsman for Equality, it has been determined, based on the information provided by the applicants of opinion and the report ordered by the employer that the employees have been subjected to sexual harassment. Therefore, this case reviews the employer obligation to prove that they have met the obligation of a diligent employer in intervening in the harassment.

It is indicated in the report ordered by the employer that sexual harassment has been long ongoing. The Ombudsman for Equality finds that the employer should have, at least after receiving the report in question, started an investigation of the extent of employees being subjected to harassment and to take the necessary measures to stop it.

Based on the reports received, the Ombudsman for Equality is of the impression that the employees found the measures taken by the employer insufficient. It has remained similarly unclear to what degree the harassment has been investigated by the employer and if the harassment has continued after it was made known to the employer. It does appear, based on the reports received, that the employer has only investigated the harassment against A, and the report commissioned by the employer was completed based on this action.

The Ombudsman for Equality finds that the employer had and still has the duty to take steps available upon becoming aware of the sexual harassment, as referred to in section 8d of the Equality Act. If the employer does not take these measures or has not done so, an obligation to bring compensations is realised in accordance with Section 11 of the Equality Act. The Ombudsman for Equality concluded that the employer cannot avoid its obligation to take action based on the intention not to investigate at all the unwanted behaviour experienced by others than A.