Discrimination and equality

Violation of the legal obligations of employers in preventing sexual harassment – judgment 51504-01 / 14 (unknown against an anonymous person and against certain companies)

Acts

The worker filed a lawsuit to the Regional Labour Court under the law of sexual harassment by defendants who asked – the employee and the employer itself – pay damages. The worker claimed that the employee carried out the acts of sexual harassment against her and harassment arising from sexual harassment and was committed to complaints against them. Against the employer argued that it violated its obligations as an employer under the law and that harassed her.

Regional Labour Court dismissed worker and found that employee behavior is not sexual harassment. More tribunal, he said when the charge as baseless, said that should be discussed the issue of employer responsibility. The worker appealed against the decision above concerning the employer, the National Labor Court.

National Labor Court ruling

Section 3 (b) of the law states that sexual harassment “Harassment is any injury arising from sexual harassment or from a complaint or a lawsuit for sexual harassment.”

Therefore, injury / hit / damage to reputation caused by the employer / (or employee or, or delegate appointed by him) resulting from a complaint or a claim of sexual harassment is harassment, even if the complaint of sexual harassment or request It has not been proven. Furthermore, harassment can affect also the subject even if it has not found that the employee was subject to sexual harassment. Any damage from the employer over the employee is legally an injustice.

National Labor Court determined that problems should be reversed because the regional labor court in order to complete research on employee complaint concerning damage which the company employing them brought.

In this case breaches that society has by law:

The law requires employers to take reasonable steps to prevent acts of sexual harassment or persecution in the labor relations and imposes upon them [employers] various obligations regarding the treatment of complaints of sexual harassment or persecution. Various obligations, which are detailed in Article 7 of the law, such as the appointment of a proxy by the employer; an effective way to lodge a complaint; fast and efficient treatment in cases of sexual harassment or persecution, and do everything possible to prevent the recurrence of acts concerned and for damages; deciding the rules. In accordance with section 7 (d) regulations were adopted to prevent sexual harassment and they establish different obligations imposed on employers. Employer obligations deriving from the law and the legal regulations are independent and do not depend on whether or not proven sexual harassment or persecution.

The controversy that arose here about the possibility of an applicant to rely on Article 7 (c) of the Act, where alleged that the employer has violated the obligations imposed on him by law and regulations and has not proven sexual harassment or persecution made by another employee or officer of the employer. Section 7 (c) of the Act provides:

“An employer who has not complied with its obligations … will be responsible for a civil offense under Section 6, torts; in addition be responsible for damages and damages pursuant to Section 7 of the Equal Opportunities Law, committed the employee or his attorney … in labor relations. “

Section 7 of the Law on Equal Opportunities in employment establishes, inter alia, that the employer will not harm the employee, in all matters listed in section 2 of the Act, when the source is sexual harassment complaint. Under Section 7 (c) – the law to prevent sexual harassment in certain circumstances, it is the employer’s liability for a tort committed by an employee or a person designated by him or. If the employer itself perform sexual harassment or persecution, then he is guilty under section 6 or 7 of the Act and to impose equal blame does not make reference to the provisions of Section 7 (c). Act Section 6 (a) of the Act which states that sexual harassment and persecution are civil wrongs; in this case applies Damage Ordinance. Depending on Damages Ordinance, any person aggrieved by an injury is entitled to immediate repair of the man who committed the offense or the one under whose responsibility is the one who committed the offense. Damage Ordinance establishes the conditions in which tort law for the crime committed will be imposed on him that not only performed but also on other “even if it has not done an injustice, and so accountability -… acts against others. In section 13 of the Ordinance shall be established, for example, the conditions of hiring also and employer’s liability for an act committed by an employee or. However, the possibility of imposing someone else’s responsibility for the acts of others, in fact, not exclude the possibility that he have and responsibility in carrying out the crime.

Possibility of a person some responsibility for the acts of others, recognized by law, where there is a special relationship between it and the one who caused the damage. This is the framework in which to be seen, section 7 (c) of the Law, which specifies the conditions in which it also requires, and the employer’s liability for an act of sexual harassment or persecution committed by another person who he worked with his employer or attorney. It is clear that to impose liability for an employer must prove that “the other” – or desemnatul or employee, committed the act of sexual harassment or persecution.

Section 7 (c) of the Act allows to impose employer tort the facts made by the employee or or a representative of his, and if it does not prove any wrongdoing on the above, not be able to impose liability on the employer by power this section. The grounds for the request of the employee – a violation of the company’s obligations under the law and regulations only in Article 7 (c) of the Law and its ordinances – were rejected.

From the above does not imply that the applicant left without any remedy if it turned out that the employer violated its obligations under the law and regulations, but could not prove the claim of harassment or persecution or harm under section 6 or section 7 equality Act.

Violations of employer obligations under the law and regulations they may constitute a violation of other rules applicable to the employer. There are many legal tools to cope with

any such case of its kind, for example, can introduce failure as the cause of the employment contract, including the obligation of good faith; Breach of statutory duty; Breach of trust and so on. Section 7 (c) of the law is not one of these “tools”.

Regional Labour Court did not discuss whether the company has breached its obligations under as an employer of other reasons. Therefore, this issue and I was turned to be completed by the District Court in its decision. (Judgment given on 09.08.2015).

From the editors: offense accomplished by the employer (or the employee or, or the person designated by him), resulting from a complaint or a claim of sexual harassment is damage, even if the subject of the complaint or request for sexual harassment has not been proven . Employer obligations under the law and regulations are independent obligation and does not depend on whether sexual harassment was found to persecution.