#MeToo and Employee Conduct Regulation
By Rohan Burn, SENIOR ASSOCIATE
The third and final session of our recent Innangard Global Employment Law Conference was a discussion on the global impacts of the #MeToo movement in the employment law sphere.
The session was hosted by PCS Director Kathryn Dent, with contributions from Mathilde Houet-Weil from France, Juan Jose Hita Fernandez from Spain, Martijn van Hall from the Netherlands and Ulf Goeke from Germany.
Sadly, there have always been issues of sexual harassment in workplaces across the globe. The scale of the problem has been revealed in recent years through the work of the #MeToo movement. The #MeToo movement famously began when Hollywood actress Alyssa Milano tweeted:
“If all the women who have ever been sexually harassed or assaulted wrote ‘Me too,’ as a status, we might give people a sense of the magnitude of the problem.”
This movement has prompted women from around the world to come forward by posting the hashtag, raising awareness on the scale and impact of sexual harassment and creating a global dialogue around the issue. Indeed, it could be said that sexual harassment is currently the most significant employment law issue around the globe.
How Do Employers Address the Issue – Policies and Procedures
All employment lawyers would agree that having well-written policies and effective procedures targeting sexual harassment is an effective way for an organisation to create a safe and respectful workplace. Ensuring that employees receiving training on these matters and senior employees model appropriate behaviours (including “whistleblowing”) will enliven these written documents and further protect employees from harm and employers from liability.
Notwithstanding the general agreement around the functional role policies can play to combat sexual harassment in the workplace, the practices and legal landscape of each country represented on the panel varied significantly. For example, in Australia, the Netherlands and Germany there is no strict legal obligation on companies to have such policies or procedures in place, but they are mandatory in France for companies with more than 50 employees and in most sectors in Spain.
The processes for dealing with complaints also vary across international jurisdictions. In Australia, France, Germany and Spain, there is no mandated process for investigating and managing complaints about sexual harassment and employers tend to tailor their processes to the specific requirements of the organisation. Employers may utilise internal or external persons to conduct investigations and ultimately the employer determines the sanction (if any) that will be imposed. Employers who are careless in creating and implementing these processes may be exposed to significant legal and reputational risks.
In comparison, there is more uniformity in the approaches that organisations in the Netherlands take to manage complaints about sexual harassment. In general:
- A written complaint will be made to a confidential advisor.
- An independent complaint committee of three people will be established to handle the complaint and make recommendations to the employer. The committee is required to have both male and female members and at least one (preferably all three) of the members must not be an employee of the relevant organisation.
- After conducting hearings and investigating the complaint, the committee will provide the employer with a reasoned written opinion about the plausibility of the complaint and recommendations for any measures to be taken.
- If the employer deviates from the advice of committee, it must provide reasons.
Liability of Employers
In all countries represented on the panel, employers owe a duty of care towards employees to protect them from sexual harassment in the workplace. In general, if an employer can demonstrate that it has taken all reasonable steps to prevent sexual harassment, then liability may only be attributed to the individual perpetrator.
Employers and employees should also be cognisant of the possibility of the matter being characterised and prosecuted as a criminal matter. In addition, particularly in Australia, employers should be mindful of the possibility of defamation claims being brought with respect to individuals who allege they have been falsely accused of sexual harassment. The recent Geoffrey Rush litigation is a reminder of how this risk can materialise in circumstances where the allegations are in the public domain and have affected the career and reputation of the accused.
Consequences of Sexual Harassment
In general, the severity of the disciplinary action taken (if any) must be proportionate to the seriousness of the proven misconduct. Disciplinary action may include written warnings, suspension, relocation and the termination of employment. Noting this publication’s earlier article about the termination of employment, it is relevant to note that a proven allegation of sexual harassment will often constitute serious misconduct and lead to summary dismissal. For example, in Spain the employer has an automatic right to terminate the perpetrator’s employment and if the matter goes before a Court and the allegations are substantiated, the judge is prohibited from considering and ordering less severe forms of disciplinary action.
In addition, in the Netherlands it is possible to impose a financial penalty on the perpetrator and deduct that amount from the employee’s salary. In other jurisdictions such as Australia and France, an employer cannot lawfully enforce a pecuniary punishment against an employee. However, in France it is more common for an employer to reach a similar outcome by directing a perpetrator to take a period of leave without pay.
Managing Welcome Conduct and Consensual Office Relationships
Of course, from time to time consensual sexual activity and office relationships are a reality
of working life. These situations can be very sensitive and difficult for employers to manage, especially if office relationships go sour. This can be particularly difficult when there are imbalances of power between the two involved in the relationship or where conflicts of interest arise between a relationship and the duties owed to the employer.
Again, very different attitudes were found across the various countries. In Australia we had a recent case where a CEO of a large insurance company lost a significant amount of his bonus by failing to disclose his relationship with his secretary to the company’s board. However, this is very different to the case in Germany and
France where the right to a privacy is protected, meaning an employer cannot require employees to self-disclose personal relationships.
Having a policy in place around how to manage and when and how to disclose office relationships was considered as best practices in jurisdictions where such policies are lawful.
While the responses to the #MeToo movement vary internationally, it is universally acknowledged that employers have a role in combatting sexual harassment.