Whilst discrimination and sexual harassment in Europe has always been outlawed throughout the EU, the individual member states have their own laws and regulations. This makes for a complicated scenario for companies attempting to create compliance training programs that will work across the whole of Europe.
The European Union definition of sexual harassment is based on what is known as the ‘Dignity Harm Approach’, whereas, in the US, the model is called the ‘Discriminatory Approach’ (European Institute for Gender Equality report 2012). Both the USA and the EU are taking an increasingly strong line on Sexual Harassment, and breaches of compliance on Sexual Harassment regulations in both regions can have a seriously damaging effect upon the reputation of any organisation. There are also severe financial consequences. EU Directive 2006/54/EC speaks of ‘dissuasive penalties’. The same Directive speaks of the importance of compliance training in combating Sexual Harassment in Europe, specifically in the workplace.
So, beyond general awareness training, what else should companies in different EU locations consider?
An evaluation of the laws on Sexual Harassment in Germany in 2002, found implementation to be ‘weak and uneven’. As a result, the General Equal Treatment Act came into force in 2006, and Sexual Harassment now comes under the heading of Gender-Based Violence. Companies operating in Germany need to be aware of the strong regulations, which can carry penalties including custodial sentences, and it is essential that those responsible for training and conduct in the workplace ensure that their German-based workforce is kept up to date on changing regulations.
In the ten months to April 30th 2019, French authorities have handed down 447 fines of up to €750 related to ‘street harassment’, a clear indication that France will not tolerate Sexual Harassment, and will take punitive action against those who perpetrate it.
Elsewhere in France, the “Right to Flirt” has been cited in court, and judgement on the case in which it was put forward as a defence is expected in September 2019. Regardless of the outcome, companies operating in France are becoming increasingly wary of depending upon a traditional view of ‘flirting’ to excuse behaviour that in other regions might be considered harassment. They are now looking to training courses for their workforces to ensure that behaviour red lines are not crossed. Sexual Harassment is now a criminal offence in France, and although some of the wording of the laws seem to allow some leeway in defence (‘repeatedly’, ‘serious’, etc) there is no doubt that France is taking steps to strengthen its laws in this area. Organisations operating in France will need compliance training that keeps abreast of this changing climate.
In Spain, harassment comes under a general legal heading of Sexual Abuse, and in cases that specifically exclude violence or intimidation, there is a sentence of imprisonment from one to three years or a significantly punitive fine. At a corporate level, companies operating in Spain that do not ensure that their workforces are correctly trained in the topic of Sexual Harassment run serious risks to their own reputations.
In Italy, Sexual Harassment is seen, in law, as a form of stalking, and in 2009 Italy adopted an anti-stalking law that decreed it to be a criminal offence punishable with a prison sentence ranging from six months to four years. In most other ways, the law in Italy is closely in keeping with the EU Directives on the subject. There is an obligation on employers to ensure the health and safety of their employees, and this includes protection from Sexual Harassment, even if that harassment is not committed by the employer or a member of the workforce. The laws in Italy covering Sexual Harassment are quite complicated, and the penalties for infringement are harsh; compliance training for an Italian workforce is the best defence against potential charges of Sexual Harassment.
Sexual Harassment at Work is a crime in Belgium. The laws and regulations covering it come under a general heading of Psychosocial Risks, and companies are expected to carry out risk assessments of their workplaces in order to identify and mitigate those risks. These risk assessments need to be comprehensive, and those tasked with carrying them out should be thoroughly trained to ensure that they are competent and qualified. Breaches of the law may well result in criminal proceedings against both employer and harasser. Apart from the legal aspects of Sexual Harassment, in Belgium, there is a growing popular movement against it, and reputational damage will be severe. For example, female researchers in the academic world set up SASSY (Sharing Academic Sexism Stories with You), which led to universities in Belgium taking a stronger line on Sexual Harassment.
Sexual Harassment is not specifically mentioned in Danish criminal law, although Denmark was one of the first countries to respond to the Me Too movement with draft legislation. On the whole, Denmark follows the EU line on the subject, but most of the regulations are advisory, rather than compulsory. The situation is fluid, and companies operating in Denmark would be well advised to ensure that their compliance training programme keeps abreast of new laws and regulations.
The laws governing Sexual Harassment in the workplace follow the EU regulations quite closely, but in addition, they are covered by the Equality Act 2010. In the UK, it is not necessary for an employer to be aware of Sexual Harassment in order to be prosecuted, nor does a person who is being sexually harassed have to indicate that the harassment is unwelcome for it to be judged illegal. There is a requirement that the victim’s response must be ‘reasonable’, but that is a term open to a wide range of interpretations. These potential ambiguities make it essential for there to be a strict Code of Conduct in the workplace, and that Code of Conduct must be drawn up by somebody who is trained, qualified and competent. It would also be very unwise to leave the workforce in any doubt as to what constitutes Sexual Harassment. The best defence against prosecution for breaches of Sexual Harassment regulations is thorough and expert training for the entire workforce, from senior management down to casual labourers, all of whom will be deemed to be under the control of the organisation.
The Best Defence
An untrained and uninformed workforce operating anywhere in Europe is in danger of infringing the laws and regulations governing Sexual Harassment in the workplace. The impact on victims can be life-changing, and the penalties for both individuals who commit sexual harassment, and their employers, are severe. The best defence against breaches is good compliance training, delivered in the right way, at the right time, to the right people.