Consultation of management and labour on the prevention of sexual harassment at work - Sexual harassment
Date: 1996-07-24
Institutions: European Commission
Subjects: equal treatment, female work, gender equality, labour law, sexual harassment

COMMISSION  OF THE EUROPEAN  COMMyNITIES 

Brussels,  24.07.1996 
COM(96)  373  final 

CONSULTATION  OF MANAGEMENT AND  LABOUR ON TOE PREVENTION OF 
SEXUAL HARASSMENT AT WORK 

Sexual  harassment 

(presented  by the Commission) 

CONSULTATION  OF MANAGEMENT AND  LABOUR ON THE PREVENTION  OF 
SEXUAL HARASSMENT AT WORK 

Sexual  harassment 

INTRODUCTION 

The  aim  of  this  paper  is  to  seek  the  views  of  management  and  labour  on  the  issue  of  the 
protection  of  the  dignity  of  women  and  men  at  work  (hereafter  "sexual  harassment"). 

The  Commission's  interest  in  this  area  derives  from  its  policy  of  equal  opportunities  for 
women  and  men.  Sexual  harassment  at  work  may  be  contrary  to  provisions  contained  in 
Council  Directive1  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. 

Subsequent  to  the  adoption  of  this  directive,  the  European  Parliament,  the  Commission  and 
the  Council  have  adopted  several  measures  in  this  field-

in  1986 the European Parliament  adopted  a resolution  on violence against  women2. In 
the  section  on  sexual  harassment,  it  asked  the  Commission  to  conduct  a  series  of 
surveys  on  the  costs  arising  from  sexual  harassment  and  to  propose  a  directive  to 
supplement  the  existing  legislation.  Moreover,  it  called  on  trade  union  organisations 
to  take  a number  of  preventive  measures  in  this  field; 

in  1987  the  Commission  published  a  report  on  the  development  of  the  situation  as 
regards  sexual  harassment 
the  various  Member  States:  The  dignity  of 
women  at work.  A report  on the problem  of  sexual harassment  in the Member  States 
of  the  European  Communities'.  This  survey  showed  that  the  existing  means  of  legal 
redress  in  the  Member  States  were  generally  inappropriate  in  cases  of  sexual 
harassment3; 

in 

i  OJNo  L  39  of  14.2.1976 

2 

OJC  176 of  14.7.1986 

3 

Michael  Rubenstein  "The  dignity  of  women  at  work.  A  report  on  the  problem  of 
sexual  harassment  in  the  Member  States  of the  European  Communities",  Oct.  87., V/412/87 

14 

on 29 May  1990 the Council  adopted a resolution on the protection  of the dignity  of 
women  and men  at work  which  requested  the Commission  to  draw up a code  of 
practice  and recognised  the fact  that under  certain  circumstances,  sexual  harassment 
could  conflict  with the  directive  on equal  treatment4; 

on 27 November  1991, the Commission  adopted a recommendation on protecting the 
dignity  of  women  and men  at work  and a code  of  practice  on  measures  to be taken 
to  combat  sexual  harassment5.  The recommendation  called  on the Member  States to 
take measures to promote awareness of the fact that sexual harassment is unacceptable 
and  may  conflict  with  the  principle  of  equal  treatment.  It  also  asked  the  Member 
States to encourage employees' and employers' representatives to formulate  measures 
to  implement  the  Commission's  code of practice; 

the  Council,  in  a declaration  of  19 December  1991  on the implementation  of the 
Commission's  recommendation  and code of practice,  requested  the  Commission  to 
encourage  an adequate  exchange  of  information  with a view  to improving  existing 
knowledge  and experience  in the Member  States in relation to preventing  and 
combatting  sexual  harassment  at work6; 

in  September  1993  the  Commission  published  a  guide  to  implementing  the 
Commission's  code  of  practice7,  a  practical  and  pragmatic  handbook  containing 
examples  taken  from  real  life  that  reflect  the  current  endeavours  to  resolve  the 
problem  of  sexual  harassment; 

In  February  1994,  the  European  Parliament  adopted  a  resolution  on  a new  post  of 
confidential  counsellor  at the workplace8, 

Within  the  Commission  itself,  the  commitment  to implement  the measures  in the 
Council  resolution  of  29 May  1990 and the Commission  recommendation  and Code 
of  Practice  was  confirmed  in  the  Commission's  internal  Second  Positive  Action 
Programme  and most recently  on 29 February  1996,  in a Communication  addressed 
to  all  Commission  staff outlining the policy  and procedures relating to the protection 
of  dignity  of  the person  at the workplace. 

4  OJ C  157  of  27.6.1990. 

5  OJNo.  L 49  of  24.2.1992. 

6  OJC  27 of  4.2.1992. 

I  Michael  Rubenstein,  Ineke De  Vries  "How to  combat  sexual  harassment  at work. 
A  guide  to  implementing  the  European  Code  of  Practice."  Commission  of  the 
European  Communities,  1993  (ISBN  92-826-5225-4),  1- 4 pages 

8 Resolution  on a new post of 'confidential  Counsellor' at the workplace  A3-0043/94, 
II  February  1994. 

2 

/lb 

As  requested  under  Article  4  of  the  1991  Recommendation,  Member  States  informed  the 
Commission  during  1994  and  1995  of  the  measures  they  had  adopted  to  give  effect  to  it. 
During that same period, research was also  carried out to  evaluate  the progress  achieved by 
the social  partners on this issue.  These elements, together with other sources of  information, 
have been  used to  draw up the  "Evaluation  report on the  Commission  Recommendation  on 
the protection  of  the dignity  of men and women  at work  "  (see III.  and Annex). 

II.  THE GENERAL  CONTEXT 

The  expert  report  published  by  the  Commission  in  1987  analyses  the  problem  of  sexual 
harassment  in the workplace  on the basis of  an extensive  survey  carried out in the Member 
States. It found that sexual harassment is a serious problem for many working women in the 
European Community  and that research in the Member States has proven beyond  doubt that 
sexual  harassment at work is a phenomenon that affects  millions of women  in their working 
lives.  Men, too, may suffer  sexual harassment and should, of course, have the same rights as 
women  to  protection  of  their  dignity.  These  findings  are reiterated  and expanded  on  in the 
European Parliament publication "Measures to Combat Sexual Harassment at the Workplace -
Action  Taken in the Member  States of the European  Community" (1994)9. 

Some  specific  groups  are particularly  vulnerable  to  sexual  harassment.  Research  in  several 
Member  States,  which  documents  the  link  between  the  risk  of  sexual  harassment  and  the 
recipient's perceived vulnerability, suggests that divorced and separated women, young women 
and new  entrants  to  the  labour  market  and those  with  irregular  or  precarious  employment 
contracts, women in non-traditional jobs, women with disabilities, lesbians and women  from 
racial minorities, are disproportionately  at risk.  Gay men and young  men are also vulnerable 
to harassment. 

Moreover,  given  the  growing  trend  towards  men  and  women  working  together  at  similar 
levels,  the  profile  of  persons  subjected  to  harassment  at  work  is  changing.  Many  cases  of 
sexual  harassment  now  take  place  between  persons  at the  same  level  in  the  hierarchy,  not 
always between  employees  and their superiors. 

As  shown  in the Evaluation Report  concerning  the implementation  of  the  Recommendation 
and  the  Code  of  Practice  (see  III.  and  Annex),  in  spite  of  the  lack  of  the  comprehensive 
approach needed to fulfil  the aim of the Recommendation, the problem of sexual  harassment 
has in recent years been acknowledged  in a majority  of  the Member  States and has resulted 
in the enactment or preparation of legislative acts in Belgium, France, Germany, Italy, Ireland, 
the Netherlands and Spain and in collective  agreements in some sectors in Spain, the United 
Kingdom,  the  Netherlands  and  Denmark.  It  should  also  be  noted  that,  in  certain  Member 
States, the pre-existing legislation has formed the basis for successful  legal  actions before the 
courts,  e.g.  U.K.  and Ireland. 

DOC EN\DV\245\245696 

3 

Je 

Sexual  harassment  pollutes the working  environment  and  can have  a devastating  effect  upon 
the health, confidence,  morale and performance  of those affected  by it. The anxiety  and  stress 
produced  by  sexual harassment  commonly  leads to those subjected  to it taking time off  work 
due  to  sickness,  being  less  efficient  at  work  or  leaving  their job  to  seek  work  elsewhere. 
Employees  suffer  the adverse  consequences  of the harassment  itself  and  short  and  long-term 
damage  to  their  employment  prospects  if they  are forced  to  change jobs.  Sexual  harassment 
may  also  have  a  damaging  impact  on  employees  not  themselves  the  object  of  unwanted 
behaviour,  but  who  are  witness  to  it  or  have  a knowledge  of  the  unwanted  behaviour. 

It  follows  from  the  above  that  there  are  quite  severe  consequences  arising  from  sexual 
harassment for  employers. Considering the significant  and rapid  changes in the labour  market 
in  recent  years,  in  terms  of  women's  participation,  the  negative  effect  of  sexual  harassment 
is reinforced.  It has  a direct  impact on the profitability  of the enterprise  where staff  take  sick 
leave or resign from  their posts because of sexual harassment, and on the economic  efficiency 
of the enterprise  where employees'  productivity  is reduced by having to work in  a climate in 
which  individuals'  integrity  is  not  respected.  Moreover,  the  negative  publicity  which  is 
sometimes  associated  with  sexual  harassment,  as  well  as possible  legal  implications,  can  be 
devastating  for  a business. 

In general terms, sexual harassment is an obstacle to the proper integration  of women  into the 
labour  market  and  the  Commission  is  committed  to  encouraging  the  development  of 
comprehensive measures at all relevant levels involving legislative acts, collective  agreements 
as  well  as  studies  and  information  campaigns  to  improve  such  integration. 

Ill 

THE  EVALUATION  REPORT 

The  "Evaluation  report  on the  Commission  Recommendation  on  the protection  of  dignity  of 
men and women  at work", annexed to this document, considers the legislative  situation  in the 
Member  States  and  the  action  taken  to  give  effect  to  the  Recommendation  and  the  Code  of 
Practice  and  the  extent  of  its  use  in  collective  bargaining  between  social  partners  in  the 
Member  States  to  which  the  Recommendation  was  originally  addressed. 

The  report  shows,  as  stated  above,  that  some  Member  States  have  responded  to  the 
Commission  Recommendation  by  legislative  acts  and  that  in  others  the  social  partners  have 
concluded  collective  agreements  in  some  sectors  and/or  initiated  information  campaigns. 

Even  if  it  is shown  that  in  a majority  of Member  States  progress  has been  made both  in  the 
legislative  field  and/or  at the level  of  the  social  partners, the  conclusion  of  the  report  is  that 
the Recommendation  and the Code have not led to sufficient  measures being adopted in order 
to  ensure  a working  environment  where  sexual  harassment  can  be  effectively  prevented  and 
combatted.  Generally  speaking,  existing legislation  is inadequate  and there  remains  a lack  of 
the comprehensive  approach  at all levels of decision-making needed to establish  and maintain 
a  workplace  free  of  sexual  harassment. 

J  1 

Even though  the Commission  Recommendation  confronts  the issue thoroughly  and the  Code 
of Practice deals with the subject  in a clear and sensible way, coherent action is limited to the 
few  Member  States  in  which  there  already  existed  a high  political  and  social  awareness  on 
this  issue. 

This  result  may  be  attributed  to  the  inherent  limitations  of  the Recommendation,  its  success 
depending  too  much  on  being  widely  known  and  followed  on  a voluntary  basis. 

IV, 

THE  IMPORTANCE  AND  EXTENT  OF  COMMUNITY  ACTION 

As  sexual  harassment  is  an  affront  to  the  dignity  of  the  individual  and  a  hindrance  to 
productivity  within the European union, it constitutes an obstacle to an efficient  labour market 
in which  men  and women  work  well together. Both in terms of  developing  a minimum  level 
of  common  social  rights  in  Europe  and  in  terms  of  competitive  conditions,  the  problem  of 
sexual  harassment  requires  attention  at  Community  level. 

In  spite  of  the  number  and  level  of  Community  instruments  stressing  the  importance  of 
combatting  sexual  harassment  at work  and the recent  actions by  Member  State  governments 
and  social  partners,  sexual  harassment  still  constitutes  a real  problem  in  labour  relations.  In 
view of the continuing  lack of effective  measures to combat sexual harassment, most  recently 
documented  in the annexed Evaluation  Report, and the emphasis put on further  action  on this 
issue in the Fourth Medium Term Action Programme on Equal Opportunities between women 
and  men  (1996-2000)10,  it  is  submitted  that  the  issue  of  sexual  harassment  at  work  is  one 
which  should  continue  to  be  actively  considered  at European  level. 

A review of the results of the evaluation  report, which show a clear lack of adequate  progress 
at the  relevant  levels  on this  matter  within  the  Community,  suggests  that  there  is  a need  for 
a new  global  approach. 

Firstly,  such  an  approach  could  include  the  comparing  and  contrasting  of  different  national 
policies  on  sexual  harassment,  of  their  experiences,  successes  and  failures,  in  order  that  a 
strategy  could  be  outlined  for  improving  the  coherence  of  existing  policies. 

Secondly,  the  Commission  recognises  the  important  part  the  social  partners  have  to  play  in 
elaborating  any  form  of  future  action, taking  into  account  their  crucial  role  in  implementing 
any  effective  method  of  combating  sexual  harassment  in  the  workplace.  The  social  partners 
also have the practical  knowledge which allows them to take into account  matters such as the 
special  position  of  small  and  medium-sized  enterprises,  and  which  enables  them  to  find 
solutions  to  specific  questions  such  as  how  to  develop  a  system  of  help  and  advice  for 
victims. 

10  Fourth  Medium-Term  Community  Action  Programme  on  Equal  Opportunities  for 
Women  and  Men  (1996-2000),  Objective  5  pp.  32-33,  COM  (381),  19.7.1995, 
confirmed  by  Council  Decision  95/593/EC, of  22.12.95  article  3, subparagraph  2  (f), 
and  Annex  point  II,  2  (OJ  L 335  of  30.12.95, p.37) 

* 

yft 

Finally,  considering  the  lack  of  adequate  progress  in  spite  of  the  number  and  extent  of 
measures ^taken  to  date  by  the  Community  in  this  area,  an  effective  new  approach  could 
involve  a  binding  instrument  setting  out  a.  common  plan  to  be  adapted  to  each  country's 
achievements,  needs  and  preferences  which  would  ensure  that,  on  this  issue, the  benefits  of 
alreadyiexisting good practice on sexual harassment could be extended to every worker in the 
European  Union. 

Taking  into  account  earlier  research,  the  Code  of  Practice  and  the  results  of  the  evaluation 
report,  an effective  instrument  should  first  of all  contain  a definition  of sexual  harassment.  It 
would  also  lay  down  a framework  of  minimum  standards  indicating  the essential  steps to  be 
followed  to  prevent  sexual  harassment  at  work,  containing  a system  of  help  and  advice  for 
victims,1 (for  example  by  the  introduction  of  a  confidential  counsellor  as  proposed  by  the 
European  Parliament11),  imposing  a  legal  duty  upon  employers  to  take  reasonable  practical 
steps  to  establish  and  maintain  a  workplace  free  of  sexual  harassment,  and  setting  out  the 
types  of  remedy  against  sexual  harassment  which  should  be  available  through  disciplinary 
measures  taken  by  the  employer  and/or  actions  before  national  courts  or  other  competent 
authorities. 

Such  an  instrument  would,  as  an  integral  part  of  a global  approach,  give  the  added  impetus 
needed to  create  a workplace  free  of  sexual  harassment. 

The Commission  believes that further  effective  initiatives in this area would  result  in  greater 
efficiency  and productivity  for  employers. They would complement existing legislation  in the 
realisation  of  equal  treatment  for  women  and  men  and  fully  accord  with  another  declared 
priority  of  the  Community  - the health  and  safety  of  workers. 

The practical  knowledge  and  experience  of the  social  partners  in  implementing  measures  to 
combat sexual  harassment is widely recognised, and their involvement would greatly  enhance 
the  prospect  of  making  significant  progress  in  this  field.  Action  on  the  part  of  the  social 
partners  could  take the  form  of  a collective  agreement  at European  level. 

In the light of the reaction  of the social partners to this communication,  the Commission  will 
consider  what further  action  is  required.  It  is clear  that, the  more the  social  partners  assume 
the  reponsibility  for  taking  effective  measures, the less the  Commission  will  feel  obliged  to 
envisage legislation, and vice versa. In any event, the Commission's future  actions will  reflect 
its  concern  that  the  most  efffective  measures  possible  be  adopted  in  this  area. 

11 Resolution on a new post of "confidential  counsellor"  at the workplace A3-0043/94, 
11 February  1994. 

6 

si 

Y, 

POINTS  FOR  DISCUSSION 

In  the  light  of  the  above,  the  social  partners  are  asked  for  their  views  on  the  following 
questions. 

(i) 

Do you  consider  that further  action  in this  area is appropriate? 

(ii) 

If  so,  should  such  action  be taken  at Community  level? 

If  so,  what  form  should  such  action  take?  Should  it be  a collective  agreement or 

(iii) 
legislation,  and,  if  a collective  agreement,  should  this be  a self-standing  instrument or 
subsequently  implemented  through  Community  legislation? 

(iv)  What  should  be the  main  elements  of  such  action? 

yi J 

EVALUATION  REPORT  CONCERNING 
THE  COMMISSION 
RECOMMENDATION  ON THE 
PROTECTION  OF THE DIGNITY OF 
MEN AND WOMEN AT WORK 

A i 

CONTENTS 

Introduction 

Sources of  information 

Chapter  1 The Situation in the Member States 

1 

4 

A country by country survey over the situation and development in the 12 Member 
States to which  the Recommendation was originally  addressed: 

Belgium 
Denmark 
Germany 
Greece 
Spain 
France 
Ireland 
Italy 
Luxembourg 
Netherlands 
Portugal 
United  Kingdom 

A country  by country  survey of  the new Member States: 

Austria 
Finland 
Sweden 

Chapter II The Practical Implications of the Code of Practice 

Degree of awareness of the Code 

The degree of application of the Code at legislative level 
and  in collective bargaining 

The effectiveness  of  the Code 

Conclusion 

A ^ 

5 
7 
9 
10 
11 
13 
15 
17 
19 
20 
22 
24 

27 
28 
29 

32 

32 

34 

35 

37 

INTRODUCTION 

On  29  May  1990,  the  Council  of  Ministers  adopted  a  resolution  on  the  protection  of  the 
dignity  of  women  and  men  at work.  The  resolution  stated  that  sexual  harassment  at work 
could  amount to a violation  of Council  Directive of 9 February  1976 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  (76/207/EEC)1.  Reference  was 
made  to the  Council  Recommendation  of  13  December  1984  on  the  promotion  of  positive 
action for women2 and the resolution of the European Parliament of  11 June 1986 on violence 
against  women3.  The  Council  resolution  affirmed  that  conduct  of  a  sexual  nature  which 
affects  the dignity  of  workers is unacceptable.  Member  States were called  upon to develop 
information  and  awareness  campaigns  for  employers  and  employees  on  combating  sexual 
harassment.  In particular,  Member  States were urged to remind  employers  of their duty to 
provide  a  working  environment  free  from  sexual  harassment  for  their  employees.  The 
development of suitable positive measures in the public sector was encouraged.  The potential 
contribution of management and labour was also underlined.  The European Commission was 
requested  to  draw  up  a code  of  conduct,  in  consultation  with  the  social  partners,  Member 
States and national  equal  opportunity  bodies. 

The  Commission  duly  responded  to  this  request  by  adopting,  on  27  November  1991, 
Recommendation  92/131/EEC on the protection of the dignity  of women and men at work4. 
The  Recommendation  recalled  the  Commission's  action  programme  for  the  Community 
Charter  of  Basic  Social  Rights  for  Workers5  and  also  the  terms  of  the  third  medium-term 
Community  action  programme for  equal  opportunities for women  and men  1991-19956. 

The  Commission  Recommendation  reaffirmed  the  main  points  of  the  Council's  1990 
resolution  as described  above.  A Code of Practice was annexed to the Recommendation.  It 
was  recommended  that Member  States implement  the Code  of Practice  in the  public  sector 
so  as  to  give  example  to  the  private  sector  (Article  2).  It  was  further  recommended  that 
Member  States  encourage  social  partners  to  develop  measures  to  implement  the  Code  of 
Practice (Article 3). 

1  OJ No  L39/40  14.2.76 

2  OJ No  L 331/34  19.12.1984 

3O J N oC  176/79  14.7.1986 

4  OJNoL49/l  24.2.1992 

s  COM(589)  568  final 

6  COM(90) 449  final  of  6 November  1990. 

i 

In  January  1994,  the  European  Parliament  adopted  a  resolution  on  the  appointment  of 
confidential  counsellors in the workplace in order to promote effective  company level  policies 
against  sexual  harassment.7 

Sources  of  information 

Under  Article  4  of  the  Commission  Recommendation,  Member  States  were  requested  to 
inform  the  Commission  within  a  period  of  three years  of  the  measures  they  had  adopted  to 
give  effect  to  the  Recommendation. 

During  this  period,  the  European  Commission  undertook  a variety  of  activities  in  order  to 
draw  public  attention  to the problem  and  to Community  policy  on this subject.  The Code  of 
Practice itself was widely  disseminated.  Moreover,  in order to ensure maximum  effectiveness 
and accessibility  for  the Code, a practical  guide was written by two leading European  experts 
on the issue of sexual  harassment.8 The guide looks at each of the provisions of the Code and 
draws  on  a  wide  variety  of  examples  of  practices  and  policies  implemented  in  different 
Member  States by  a variety  of actors.  The guide was published  in the nine official  languages 
over  1993/94. The Commission organised a number of launches and presentations of the guide 
in  London,  Dublin,  Noordwijk  (Netherlands),  Athens,  Paris  and  Rome.  Other  actions 
supported  by  the  Commission  included:  information  seminars  in  Brussels  and  in  different 
regions of the Netherlands; research  into the extent of sexual  harassment  in Luxembourg; the 
development  of  staff  training  modules  on  the  prevention  of  sexual  harassment  by  a 
British/French  theatrical  group;  the  running  of  an  "SOS Helpline"  in  Athens. 

In  1994, the Commission  wrote to the twelve Member  States to which  the  Recommendation 
was originally  addressed  requesting information  on all  national  measures taken  to give  effect 
to  the  Recommendation,  and  in  particular:  -  on  any  legislative  amendments  to  the  criminal 
or  civil  codes,  especially  the  laws  concerning  working  conditions,  workers'  safety,  Lhc duiy 
of employers in these areas - and on the extent to which the matter had been addressed within 
the  public  sector  and  whether  it  had  figured  in  any  national  negotiations  with  the  social 
partners.  Information  was received  during  1994 and  1995 from  the twelve Member  States to 
which the Recommendation  was originally  addressed. In addition, research into the legislative 
situation  in  Austria,  Finland  and  Sweden  has been  made  during  1996. 

In order  to  obtain  further  knowledge  on the  influence  and  effectiveness  of the  Code  (article 
4 of the Recommendation), research was also carried out by the Commission  during  1995 into 
the  progress  achieved  by  the  social  partners  in  the  European  Union  on  the  issue  of  sexual 
harassment  The  object  of  the  research  was  to  gain  a  general  picture  of  progress  made  in 
certain  employment  sectors. 

7  Resolution  on  a  new  part  of  "Confidential  Counsellor"  at  the  workplace  A3  -
0043/94,  11 February  1994. 

9  How  to  Combat  Sexual  Harassment  at  Work  -  A  guide  to  implementing  the 
European  Commission  Code  of  Practice  CE-77-92-433-EN-C 

The sectors considered were: Food (production and distribution); Clothing/textiles (production 
and distribution);  Clerical;  Public  Sector; Hotel,  Restaurant  and Cafe  (Horeca); Cleaning. 

The  progress  made  at European  level  by  social  partner organisations  was  also  studied.  The 
methodology  used  comprised  separate  questionnaires  for  management  and labour,  followed 
up with  interviews  and local  visits  in  some Member States. 

The additional  sources  of  information  used  in the compilation  of  this report include: 
- a study published  in  1994 by the European Parliament looking at the legislative  position in 
the  twelve  Member  States  on  sexual  harassment  ('Measures  to  combat  sexual  harassment at 
the workplace',  Women's Rights  Series January  1994). 
-  a study  carried  out  for  the  Commission  in  1994  by  L'Association  européenne  contre  les 
violences  faites  aux  femmes  au  travail  ('Innovative  European  developments  in  sexual 
harassment  policy  -  Belgium,  France,  Germany,  Ireland,  Netherlands,  Spain'  -  September 
1994); 
-  publications  of  and  comments  from  the  Commission's  Network  on  the  application  of  the 
equality  directives. 

The  present  report  is  divided  into  two  chapters.  The  first  chapter  outlines  the  legislative 
situation  in the Member  States and especially  its evolution  since  1991. It also deals with the 
role  and  main  achievements  of  social  partners  and  other  bodies  on  this  issue.  The  second 
chapter  considers  the degree  of  awareness of  the Code of  Practice,  its impact on legislation 
and  collective  agreements  and its perceived  effectiveness. 

CHAPTER I 

CHAPTER I 

SEXUAL HARASSMENT IN THE EUROPEAN UNION: A MEMBER STATE 
SURVEY 

This chapter compares the extent to which the Member States have progressed on this issue 
since the adoption  of the Commission  Recommendation  in  1991. The following  three areas 
are  presented;  legislation,  action  by  social  partners  and  information  and awareness-raising 
campaigns. 

For  the  three  Member  States  that  were  not  originally  covered  by  the  Recommendation, 
Austria,  Finland  and  Sweden,  a presentation  of the legislative situation  is given based upon 
the Commission's  own knowledge. 

BELGIUM 

I) 

Legislation 

Applicable Law 

On  18 September  1992 a Royal Decree on the protection of workers from  sexual harassment 
was signed. This Decree covers all companies in the private sector as well as certain public 
utilities. 

The Decree gives a definition  of sexual harassment very similar to the Community  definition: 
sexual harassment means any form of verbal, non-verbal or bodily conduct of a sexual nature 
which  the perpetrator  knows or should  know will  offend  the dignity  of women and men at 
the workplace (article  1 (3) ). 

On 9 March  1995 a Royal  Decree for  the public service was signed. Having the form  of a 
decree instead of a law it does not cover the authorities of the Regions and Communities or 
the local  authorities. 

Employers' Obligations 

It  is  now  a legal  requirement  for  companies  to  have  a  sexual  harassment  policy  in  place 
which  conforms  to the terms of the  1992 and  1995 Decrees. 

The  1992 Decree requires employers to set out protective measures against unwanted sexual 
conduct at work in their employment regulations. Failure to do so may expose the employer 
to penal sanctions under Article 25(1) of the Law of 8 April  1965 on | i | P P | | p i | | | | | |.  The 
!!<?! Decree  is consistent  with  the Commission's  Code of  Practice in  that  it  provides that 
employment  regulations must include the following: 

-  a definition  of  unwanted  sexual  conduct  at work 
-  a declaration  that  such  conduct  will  not  be tolerated  in  the  company 
-  the  designation  of  a  confidential  counsellor  or  service where victims  may  obtain  help 
-  a complaints  procedure 
-  the  sanctions  to  be  applied  to  those  who  perpetrate  unwanted  sexual  conduct  at  the 
workplace. 

The  1995 Decree refers  to the Commission  Recommendation  and  Code of Practice and  goes 
further  than  the  1992  Decree  in  that  it  provides  for  the  trade  unions  to be  associated  in  the 
nomination  of the confidential  counsellor  and that a victim  of sexual  harassment is given the 
right  to  complain  to  the  alleged  harasser's  superior.  The  latter  possibility  is  a  novelty  in 
Belgian  administrative  law. 

Sexual  harassment  is  not  in  itself  regarded  as a  criminal  offence  in  Belgium.  However,  the 
circumstances  in  which  such  conduct  occurs  may  constitute  a crime  under  the  penal  code. 

Legal  remedies 

The victim  of  sexual  harassment  may  resort to various means of  action  at three points in the 
working  relationship:  at the time  of  recruitment,  during  the performance  of the  employment 
contract  and  at the end  of the working  relationship.  Here, two laws are crucial  in  relation  to 
sexual  harassment:  Title  V  of  the  Economic  Re-orientation  Act  of  4  August  1978  and  the 
Employment  Contracts  Law  of  3 July  1978. Two  systems  can  be used  in  the framework  of 
the  law  of  4  August  1978:  one  restricts  the  right  of  dismissal;  the  other  prohibits  the 
discriminatory  behaviour. 

For  a victim  to  prove  an  act  of  sexual  harassment  under  the  Penal  Code  the  humiliating  or 
threatening  nature  of  the  conduct  in  question  has  to  be  shown  under  the  procedural  rules 
applying  to  the  penal  code. 

II) 

Role  of  the  Social  Partners 

The National  Labour  Council,  an institution  made up of members of the most  representative 
employers'  and  workers'  organisations,  decided  unanimously  in  favour  of  the  Royal  Decree 
of  1992. However,  very few  social  partners decided to go further.  The following  actions may 
be  cited: 

The  Christelijke  Centrale  Voeding  en  Diensten  -  ACV(CCVC)  representing  the  food  and 
clerical  sector distributed information  leaflets and brochures to its membership on the contents 
of  the  1992 Decree. 

The  Fédération  de  l'Industrie  Alimentaire  - FIA,  representing  the food  industry,  produced  a 
draft  text  on  sexual  harassment  for  the  food  joint  commission  (Commission  paritaire  pour 
l'alimentation), recommending that it be adopted by companies in that sector so as to  conform 
to  the  requirements  of  the  1992  Decree.  The  draft  text  defines  sexual  harassment  and  lays 
down  informal  and  formal  procedures  for  responding  to  incidents  of  harassment  at  work. 

Apart  from  these  examples,  it  would  seem  that  social  partners  do  not  take  the  initiative  in 
dealing  with  sexual  harassment,  although  the  successful  functioning  of  the  procedures  and 
awareness  among  staff  of  company  policy  will  depend  to  a  considerable  degree  on  the 
diligence  of  management  and  employee  representatives. 

Ill)  Awareness-raising  campaigns  and  other  measures 

A  national  information  campaign  was  carried  out  in  1986  involving  the  publication  of 
brochures  and  information  packs  in  considerable  quantities.  No  information  on  any  later 
awareness-raising  campaigns  is  available. 

Since  the  1992  Decree  was  signed,  telephone  helplines  have  also been  established  for  both 
the French-speaking  and Dutch-speaking parts of the country, where individuals may  receive 
advice  and counselling  from  trained  staff  on an anonymous basis. The lines have been  set up 
under  a pilot  project  which  began  on 8 July  1993. This telephone service is also intended  for 
those  dealing  with  the  problem  within  a business  or  institution. 

The  Belgian  Labour  Ministry  has  also  provided  training  for  labour  inspectorates  and 
confidential  counsellors. 

DENMARK 

I) 

Legislation 

Applicable  law 

No  new  legislation  has  been  introduced  in  Denmark  in  response  to  the  Commission 
Recommendation. 

Although  sexual  harassment  is not  specifically  mentioned  in  Danish  law,  the term  has been 
defined  in  court  cases  as  conduct  of  'a  sexual  nature'  or  as conduct  'based  on  sex'  which  is 
offensive  to the victims (e.g.  Ostre Landsret,  K.  v.  Danish  Skilled  Workers  Union,  Case No 
4-262,  Judgement  of  8/9/89). 

Court  cases  of  sexual  harassment  at  work  have  been  based  on  the  Equal  Opportunities  Act 
(Act  No  244  -  19/4/a).  The  Act  prohibits  all  forms  of  sex  discrimination  by  a  superior  in 
working  conditions  and  in  a situation  leading  to  dismissal  (section  4).  Sexual  harassment  at 
work  could  also  potentially  be  covered  by  labour  law  (see II)  and  criminal  law  provisions. 

According to  Section  220 of the Penal  Code, (Act No 607 6/9/86),  it is a criminal  offence  to 
seriously  abuse  the  subordinate  position  or  financial  dependence  of  another  person  in  order 
to obtain  sexual  favours  outside marriage. This has been considered in a court case to include 
sexual  harassment. 

Sections 217 (attainment  of sexual  relations by means of unlawful  duress other than violence 
or  threat  of  violence)  and  232  (offence  against  decency)  could  also be  applicable  to  sexual 
harassment. 

Employers'  Obligations 

According  to  Section  4  of  the Equal  Opportunities  Act,  the employer  can  be  held  liable  for 
sex discrimination  in employment.  Also, the employer could potentially be obliged to take the 
appropriate  action  if  an  employee  complains  about  being  sexually  harassed  by  a  supervisor 
or  a colleague. 

In addition  to this provision,  the Working Environment  Act (No 681 - 23/12/75, as amended 
by  Notification  139 - 23/3/87)  affirms  the duty  of the employer  to ensure  a safe  and  healthy 
working  environment  (Section  15).  Under  this  act,  the  employer  could  potentially  be  held 
liable  for  alleged  sexual  harassment  at the  workplace. 

Legal  remedies 

Victims  of  sexual  harassment  who  are  successful  in  court  may  claim  up to  39 weeks'  salary 
as compensation  under  Sections  14 and  15 of the Equal  Opportunities  Act.  A victim  can  also 
have  recourse  to  the  penal  provisions  mentioned  above. 

II) 

Role  of  the  Social  Partners 

Two  collective  agreements  have been  made at the national  level. Firstly,  on  1 April  1991, a 
national  Agreement  on  Equal  Treatment  -  Supplementary  Agreement  to  the  Cooperation 
Agreement  of  9 June  1986 - was  concluded  between  the Danish  Employers'  Association  and 
the  Danish  Trade  Unions  Confederation. 

Section  4(a)  of  the  Agreement  provides  that  companies  should  seek  to  ensure  a  working 
environment  free  of: 

(a) 

(b) 

unwanted  actions  of  a sexual  nature  or  any  other  action  related  to  sex  that  would 
violate  the  dignity  of  women  or  men  at  the  workplace. 
discrimination  against  any  person  who  makes  a  complaint,  who  wishes  to  do  so  or 
who  has witnessed  an  act  of  that  nature. 

Secondly,  a  similar  agreement  exists for  the  public  sector.  It  also  relates to various  equality 
issues and deals with  sexual  harassment in the same terms as the above mentioned  agreement. 

At  company  level  these  agreements  remain  in  many  cases to be  implemented. 

It appears that more progress has been made in certain  sectors; Danish  State Railways (DSB) 
includes  sexual  harassment  in  its  equal  opportunity  policy  and  has  produced  a brochure  for 
its staff  summarising  the main  points of this policy  as it appears in the collective  agreement. 

Handels og Kontorfunktionaernes  Forbund i Denmark (HK Service), representing commercial 
and  clerical  employees,  has  published  information  leaflets  for  its  members  and  a  handbook 
on  the  issue.  It  also  provides  special  training  for  its officials  on the  problem  of  harassment. 

A number of other union organisations have produced model agreements on sexual harassment 
in  individual  workplaces  but  it  is  unclear  if  these  model  agreements  have  led  to  the 
conclusion  of  actual  local  agreements. 

8 

ED)  Awareness-raising  campaigns  and  other  measures 

Over  the  past  ten  years,  sexual  harassment  has  become  an  issue  for  public  discussion. 
However,  the  level  of  debate  has  been  characterised  by  Danish  experts  as  'timid'.  No 
information  on  any  public  awareness-raising  campaigns  is  available. 

GERMANY 

I) 

Legislation 

Applicable  law 

Until  1994,  there  was  no  definition  of  sexual  harassment  in  the  law.  To  fill  this  gap,  a  law 
was  adopted  in  that year,  dealing  with  sexual  harassment  (Article  10.2  of the  Second  Equal 
Opportunities  Law).  It provides  a definition  of  sexual  harassment  at work  and  applies to  all 
workers  including  public  servants. 

The  Civil  Code  provisions  concerning  sex  discrimination  in  the  workplace  (Article  611  a. 
BGB)  and  protection  of  life  and  health  in  the  workplace  (Article  618  BGB)  are  indirectly 
applicable  to  sexual  harassment. 

Even  though  sexual  harassment  as  such  is  not  criminalised,  the  Penal  Code  is  applicable  if 
the  discriminating  behaviour  can  be  found  to  constitute  a crime  under  the  penal  provisions. 

Employers'  Obligations 

This  1994  law  sets  out  the  the  steps  that  an  employer  has  to  take  when  a  case  of  sexual 
harassment  can  be  identified  in  the  workplace. 

In  the  regulations  for  the  public  sector  it  is  stated  that  the  problem  of  sexual  harassment 
should  be taken  up  in  vocational  training  programmes. 

Legal  remedies  and  other  measures  to  help  victims 

Under the general  provisions of the Civil Code it is possible for  a victim  of sexual harassment 
to  obtain  compensation  for  both  material  and  immaterial  damage.  There  also  exist  several 
procedures  giving  the  employer  the  possibility  to terminate  the  employment  contract  of  the 
perpetrator  of the  harassment. 

The  new  law  stipulates  that  where  sexual  harassment  occurs,  the  victim  has  the  right  to 
complain  and the employer  is then  obliged  to consider  the complaint  and, if a case  of  sexual 
harassment is established,  to ensure that the victim  is not  exposed  to any further  harassment. 

On the Lander level, Bremen  is a good  example  as it has adopted  a serious  policy  statement 
and taken several  innovative initiatives including setting up an advisory bureau to help victims 
of  sexual  harassment  and  to  provide them  with  legal  advice. 

U) 

Role  of  the  Social  Partners 

The  Deutscher  Gewerkschaftsbund  -  DGB  (German  Trade  Union  Confederation)  has  run 
information  campaigns on the issue, using a variety of publications. Other union  organisations 
representing different  sectors have also published  leaflets  for  their members on the issue. No 
evidence  of  collective  agreements  within  companies  was  forthcoming. 

HI)  Awareness-raising  campaigns  and  other  measures 

Copies of the 1991 Commission Recommendation were supplied to the umbrella organisations 
representing  employers  and  trade  unions. 

GREECE 

I) 

Legislation 

Applicable  law 

There is no  specific  statutory  provision  on sexual  harassment  in  Greece. No  legislative  steps 
have been  taken  after  the  adoption  of the  Commission  Recommendation. 

National  legislation  which  could  be  applicable  includes: 

- Act "on the application  of the sex equality  principle in employment relationships" (Law No 
1414  30 January  1984).  To  date,  no  cases  of  sexual  harassment  have been  brought  under  it 
(W.R.S.  p. 49). 
-  Penal  Code  Chapter  19 on  sex-related  offences  and  Chapter  21  on  crimes  against  honour 
(articles  337,  343a,  361.1).  The  Penal  Code  contains  no  specific  provision  on  sexual 
harassment and it would therefore  have to be proven under the Criminal  Procedural  rules that 
the victim  of sexual  harassment had been exposed to behaviour constituting a criminal  act  for 
the  Code to  apply. 
-  Civil  Code (Law No 2250,  15 March  1940). Articles  662 and  228  emphasise  the  duties of 
the  employer  to  guarantee  working  conditions  which  protect  the  employee's  morals  and 
personal  integrity.  Article  281  which  concerns  the  abuse  of  authority  has  been  successfully 
applied  in  two  court  cases  dealing  with  sexual  harassment  (Cass. Plen  Ass.  17/1987 RDT). 
-  Law  No  2112  on  termination  of  employment,  dated  11  March  1920  as  amended  on  17 
October  1953. Article 7 of this law has been successfully  applied in a case in which the court 
found  that  an  employee  was  entitled  to  resign  or  to  claim  compensation  in  the  event  of 
dismissal  on  the  grounds  of  an  unfavourable  change  to  the  contract  of  employment  after 
having  been  harassed  by  the  employer  (Cass. Plen  Ass.  13/87 Jur.  Trib  36,  78) 

Employers'  obligations 

As  stated  above,  the  Civil  Code  puts  some  obligations  on  the  employer  relating  to  sexual 
harassment. 

10 

Legal  remedies 

Law  No  2112  on  termination  of  employment  has  in  one  case,  as  stated  above,  provided  a 
legal  remedy  for  a victim  of  sexual  harassment. 

H) 

The  role  of  Social  Partners 

Article  11  of  the  1993  National  Collective  Agreement  relates  to  the  principle  of  equality 
between  the  sexes  at work.  Under this article, the contracting  parties agree to take  measures 
to  ensure  dignified  treatment  of  men  and women  at  work. 

In  the  clerical  sector,  the  Greek  Federation  of  Insurance  Employees'  Unions  received 
information  on  the  Commission  Recommendation  through  Euro-FIET.  It  transmitted  this 
information  to  its various  branches. 

In  general,  there  is no  evidence  of  any  implementation  of  any  collective  agreements  on  this 
subject  at  company  level. 

Ill)  Awareness-raising  campaigns  and  other  measures 

No  evidence  of  any  awareness-raising  campaigns  other  than  the  above  mentioned,  was 
forthcoming 

SPAIN 

I) 

Legislation 

Applicable  law 

The Penal Code, as amended in November  1995, explicitly forbids  sexual harassment (Article 
154). 

The following  provisions  in  national  law  could  also  apply  to  sexual  harassment: 
-  The  Spanish  Constitution  prohibits  discrimination  on the  grounds  of  sex  (Article  35.1) 
- Law 3/1989  of 3 March  1989 has amended both the Workers' Charter of  1980 and the Civil 
Servants' Regulations  of  1964  so  as to  specifically  provide  for  the  protection  of the  dignity 
of workers  against  physical  or verbal  affronts  of  a  sexual  nature. 

Employers'  obligations 

Under the Workers' Charter (Article 4.2. e,  19.1, 50.a, 54) and the Civil  Servants' Regulations 
(Article  63),  the  employer  can  be  held  liable  for  sexual  harassment.  According  to  Articles 
45.1.h  and  54.2c  of  the  Charter,  the  employer  may  suspend  a worker's  wages  or  dismiss  a 
worker  as a disciplinary  measure. 

11 

Legal  remedies 

Apart  from  the  possibility  of  claiming  compensation  from  the  employer  (see  above)  Article 
50.1 of the Workers' Charter  states that the worker can request termination  of his/her  contract 
for valid reasons such as 'substantial alterations to his/her working conditions which adversely 
affect  his/her  (...)  personal  dignity'.  This  provision  could  be  applied  to  cases  of  sexuai 
harassment. 

Moreover,  the  worker  may  request  a  cessation  of  the  harassment  as  well  as  demanding 
compensation. 

The possibility  to take the  harasser  to  court  under  the Penal  Code  also  exists,  subject  to  the 
procedural  requirements  that  have to be  fulfilled  for  the  succès  of  such  a claim. 

H) 

Role  of  Social  Partners 

The collective  agreement  at the Ministry  of Industry,  Commerce  and  Tourism  of 25 October 
1991  provides  for  informal  and  formal  procedures  for  those  who  consider  they  have  been 
subjected  to  sexual  harassment. 

At the Ministry  of  Social  Affairs,  the collective agreement  of  8 November  1991 also sets out 
the procedures to follow  as well  as the sanctions which  may be applied  where it is found  that 
an  employee  has  sexually  harassed  a colleague. 

In  the  textile  sector,  the  collective  agreement  for  1994-1995  contains  an  article  prohibiting 
sexual  harassment  at  work.  It  also  states  that  incidents  of  harassment  shall  be  dealt  with 
confidentially  by  management  and  employee  representatives. 

The  matter  is  equally  addressed  in  the  national  agreement  for  travel  agencies,  which  states 
that verbal  or physical  offenses  of a sexual nature are serious infringements  of the disciplinary 
regulations. 

In  1994 the General  Workers'  Union  adopted  a special  equality  plan  for  its own  internal  use 
which  included  a  specific  policy  on  sexual  harassment.  It  urged  the  inclusion  of  provisions 
concerning  sexual  harassment  in  collective  agreements.  Training  and  publications  have  also 
been provided for union officials.  However,  there is little evidence to indicate that the  subject 
is  appearing  in  collective  agreements  or being  systematically  addressed  at  company  level. 

Finally, in the trade unions'  1996 guidelines for  collective bargaining, the fight against  sexual 
harassment  is  mentioned  as an  objective. 

Ill)  Awareness-raising  campaigns  and  other  measures 

The  'Instituto  de  la  Mujer',  which  is  an  autonomous  body  in  charge  of  women's  issues  in 
Spain, has arranged working meetings and exchanges of experience with the Director-General 
of Work Inspection and Social  Security to consider the question of sexual harassment at work. 
It  has  also  published  and  distributed  the  Commission's  code  of  conduct. 

12 

FRANCE 

I) 

Legislation 

Applicable law 

Two laws adopted in  1992 deal with the issue of sexual harassment. Law 92-684 of 22 July 
1992 amended the Penal  Code so as to create the new offence  of sexual harassment. An act 
where by a person  abuses the authority  conferred  on him/her by virtue of his/her  duties by 
harassing  another  person  by  means  of  orders,  threats  or  constraints  with  the  purpose  of 
obtaining sexual favours is punishable by one year in prison and a fine of FF 100,000 (Article 
222-33 of the Penal Code). Law 92-1179 of 2 November 1992 introduced a prohibition of the 
same behaviour into the Labour Code. These provisions apply only to employment situations, 
in both the private and public sectors. 

Under both laws, the perpetrator must be in a position of authority over the victim and must 
have abused that  authority  in order to obtain  sexual  favours.  Otherwise the behaviour  does 
not, in itself, constitute an  offence. 

Several  other  additions have been  made to the Labour  Code. Firstly,  Article L-122-47 has 
been  added, under which any employee who has committed  acts of a sexual nature is liable 
to disciplinary measures. Secondly, a new paragraph has been added to Article L-236-2 to the 
effect  that the Committee on Health, Safety  and Working Conditions may propose measures 
to prevent sexual  harassment. 

Thirdly,  a new Article L  123-1 of the Labour  Code provides that  no person  may take into 
consideration  the fact  that  an individual  submitted  or refused  to  submit to  acts  of  a sexual 
nature, or witnessed them or reported them, in decisions on recruitment, pay, career prospects, 
disciplinary  measures or dismissal. 

Article L-122-46 of the Labour Code states that no employee may be penalised or dismissed 
for refusing to submit to acts of harassment by an employer, his representative or any person 
abusing the authority  conferred  on him/her by his/her duties. 

This  provision  also  applies  to  any  employee  who  has  been  penalised  or  dismissed  for 
witnessing  such  acts  or  having  reported  them.  The  protection  extends  to  an  individual  in 
whom a victim  of harassment has confided,  who has reported it and who has been penalised 
or dismissed for doing so. The article also covers harassment which takes the form  of a client 
of the firm exerting pressure on an employee. 

Furthermore,  the  general  civil  servants'  regulations  (Law  83-634  of  13  July  1983)  were 
supplemented  in  a  similar  way  through  Article  122-47  of  the  Labour  Code  concerning 
disciplinary measures. 

13 

Employers'  Obligations 

The new Article L  122-48 in the Labour Code requires the head of an undertaking to take all 
the  necessary  steps  to  prevent  acts  constituting  an  abuse  of  authority  of  a  sexual  nature,  in 
the  context  of working  relations.  Employees  of  a company  have to be  informed  of  the legal 
measures applicable. The labour inspectorates are responsible for ensuring that these measures 
are  applied  but  there  is  no  sanction  against  the  head  of the  business  who  does  not  fulfil  the 
obligation. 

Legal  remedies 

The new laws of  1992 (Law 92-684 and Law 92-1179) have introduced a system of penal and 
civil  provisions  punishing  the  perpetrator  of  sexual  harassment  and  making  any  penalisation 
of  the  victim,  because  of  a  refusal  to  submit  to  or  the  protesting  against  acts  of  sexual 
harassment,  null  and  void. 

The  new  Article  L-122-46  of  the  Labour  Code  entitles  an  employee  who  has  suffered 
harassment  to  be  reinstated  or to be  awarded  compensation 

II) 

Role  of  the  social  partners 

Article  L-123-6  of  the  Labour  Code  allows the  representative  trade  unions  in  the  company 
to take  legal  action  on behalf  of the  employee  suffering  sexual  harassment. 

After  obtaining  the  victim's  written  agreement,  the  trade  union  can,  as  a  first  step,  bring  a 
case before  the  Conciliation  Board  and,  if  conciliation  is not  successful,  subsequently  bring 
a  private  action  before  a  criminal  court. 

Similarly,  the  law  amends  Articles  2-2  and  2-6  of  the  Criminal  Procedure  Code  so  that 
associations which want to combat discrimination  on the grounds of sex through their statutes, 
have the right to act as plaintiffs  and bring  a private action before  a criminal  court,  provided 
they  obtain  the  written  agreement  of the  person  concerned. 

There is no information  on any  collective agreements providing for  special  clauses on  sexual 
harassment. 

A number  of French  union  organisations  have informed  their  members about the contents of 
Law  92-1179. 

III)  Awareness-raising  campaigns  and  other  measures 

In  order  to  raise  awareness  about  the  legal  provisions  introduced  by  the  new  laws  of  1992, 
various  actions  have  been  undertaken  by  the  French  authorities  including  an  administrative 
circular  explaining  the  effect  of  the  law,  brochures,  information  days  and  training. 

14 

IRELAND 

I) 

Legislation 

Applicable  law 

There is no explicit prohibition  of sexual harassment in Irish law but the Labour  Court stated 
in  a ruling9  in  1985 that  "freedom  from  sexual  harassment  is  a  condition  of  work  which  an 
employee  of either  sex is entitled to expect"  and that denial  of  such freedom  contravenes the 
1977 Equality  Act. 

According  to this  Act  which  applies to  employees  of both  the private and  the  public  sector, 
the employer  may  not  discriminate  on the basis  of  sex in any  of the terms and  conditions  of 
employment.  Furthermore,  several  provisions  of  the  Unfair  Dismissals  Act  1977  could 
potentially  be applied to both  the victim  of  sexual  harassment  and the harasser  in  particular, 
Articles  2(c),  4(b)  and  6. 

In  1994 a National  Code  of Practice  on  sexual  harassment:  "Measures to Protect the Dignity 
of  Women  and  Men  at  Work",  was  drawn  up  and  published  by  the  Employment  Equality 
Agency  (EEA). 

This document is modelled  on the Commission's Code of Practice. It is intended that the code 
will  receive  statutory  recognition  in  the  new  equality  legislation  which  is  currently  under 
consideration.  This  would  involve  facilitating  reference  to  the  code  in  proceedings  under 
existing  equality  legislation  before  an Equality  Officer  or the Labour  Court. 

Employers'  obligations 

The employer  has a responsibility  under the  1977 Employment  Equality  Act and  subsequent 
case  law,  for  ensuring  that  employees  enjoy  freedom  from  sexual  harassment.  The 
responsibility  of  the  employer  has been  extended  in  case law 
to  acts  of  sexual  harassment 
perpetrated  by  persons  other  than  employees  who  are  regularly  on  the  premises  of  the 
workplace. 

Legal  remedies 

As a consequence of the employer's responsibility  under the  1977 Employment Equality  Act, 
an employee  can obtain  damages from  the employer for  sexual  harassment,  in the  context of 
a  complaint  about  terms  and  conditions  of  employment.  For  the  employer  to  be  liable,  the 
employee  will  have  to  show11  that  the  employer  was  aware  of  the  sexual  harassment 
perpetrated  by  another  employee. 

9  A Garage  Proprietor  v.  A Worker  EE  2/1985 

10  A  Company  v.  A Female  Worker  EEO  3/1991 

nA  Company  v.  A Worker  DEE  2/1988 

15 

Most court cases in which employees have obtained damages have involved unfair  dismissal 
or  constructive  dismissal  because  of  sexual  harassment.  In  order  to  establish  constructive 
dismissal  the  worker  must  show  that  the  only  reasonable  course  open  to  her/him  was to 
resign. 
Victims can rely on the support of the Employment Equality  Agency who usually  assist and 
make submissions  on behalf  of complainants  alleging  sexual  harassment before  the Labour 
Court or an Equality  Officer. 

II) 

Role of the social  partners 

The social partners have co-operated in the drafting  of the aforementioned  National  Code of 
Practice.  The  Code  gives  guidelines  to  employers  on  the  subject,  defining  inappropriate 
conduct,  stating the disciplinary  consequences and explaining the procedure to be  followed 
in making a complaint  of harassment.  These guidelines should be circulated  to all  staff  and 
other  actors  whose  actions  have  an  impact  on  the  working  environment.  The  Code 
recommends that trade unions have clear policies on sexual harassment and include it in their 
collective bargaining agendas. It can be expected that when the national  Code of Practice is 
given  statutory  recognition,  the guidelines will be adopted by most companies. 

The  Irish  Business  and  Employers'  Confederation  have  produced  guidelines  on  industrial 
relations which include information  on how to deal with sexual harassment at the workplace. 
IBEC also encourages additional  training for  managers and supervisors on the  subject. 

A  number  of  trade  unions  have  informed 
their  members  about  the  Commission 
Recommendation  in  leaflets  on  sexual  harassment.  Model  agreements have been  drawn up 
(e.g. by the Services Industrial Professional  Technical Union) and many of these agreements 
have been included  in collective agreements at branch level. 

In the services sector, some of the bigger banks have adopted sexual harassment policies. In 
the food  production  and distribution  sector,  sexual harassment has been addressed  in policy 
statements. 

In the public sector, the Electricity Supply Board, An Post, Telecom Eireann, RTE (television 
and radio broadcasting)  and Aer Lingus have all adopted policies on sexual  harassment. 

III)  Awareness-raising  campaigns and other measures 

Apart from the publication of the Code of Practice mentioned above, there is no information 
on any other public awareness-rising campaigns. 

16 

ITALY 

I) 

Legislation 

Applicable  law 

The Equal  Opportunities Act, the Civil Code and the Penal Code (Articles 520, 612, 660) and 
Act  No 66 of  15 February  1996 on rape contain  provisions which could  be used  in  situations 
of sexual harassment.  Furthermore, Law No  125 of  1991 on Positive Action to Promote Equal 
Treatment  for  Men  and  Women  at  Work,  strengthens  the  existing  provisions. 

Italian  Law  has no  explicit  prohibition  of  sexual  harassment  but  the  matter  could  fall  under 
provisions  in  the Equal  Opportunities  Act,  the Civil  Code, the Penal  Code and Law No  125 
of  1991  on  Positive  Action  to Promote  Equal  Treatment  for  Men  and  Women  at  Work 

The Equal  Opportunities  Act (Law No  903  of  9/12/77)  prohibits any  form  of  discrimination 
based  on  sex  in  questions  of  employment  (Art.  1). Law  No.  125 reinforces  this  prohibition 
by  specifying  that  sex  discrimination  includes  any  act  or  behaviour  that  adversely  affects 
workers by  discriminating  against them, even  indirectly,  on the grounds of their  sex (Art. 4). 

These  definitions  could  be  interpreted  to  include  sexual  harassment.  This  would  mean  a 
prohibition  of  sexual  harassment  and that  sexual  harassment would  have to be combatted by 
positive  action  in  the  workplace. 

Several  provisions in the Civil  Code have been  interpreted  in case law as being applicable  to 
cases  of  sexual  harassment.  See below  under  (II)  and  (III). 

A draft  law  on  sexual  harassment  is  currently  under  consideration  in  the  Senate  and  it  will 
also  be  considered  by  the  Chamber  of  Deputies.  The  draft  law  exclusively  concerns  the 
problem  of sexual  harassment at work.  It provides that employees have the right to a working 
environment  which  is safe,  peaceful  and  favourable  to inter-personal  relationships  on a basis 
of  equality  and  mutual  respect.  Sexual  harassment  would  be  specifically  deemed  to  be 
discriminatory  behaviour  for  the purpose  of  Article 4  of Law  125/1991. 

The draft  proposes infer alia that it should be obligatory  for  employers to adopt the measures 
necessary  to  ensure  the  physical  and  moral  integrity  of  their  employees  and  to  agree  with 
trade  unions  on  the  necessary  training  and  preventive  action.  It  also  makes  provision  for 
annual  information  campaigns. 

Employers'  Obligations 

Law No. 903 provides that liability  falls  on any person  who commits an act of  discrimination 
(Art.  16). This could  potentially  be applied  to the employer  in  respect  of  sexual  harassment 
by  supervisors  or  colleagues. 

17 

Article 2087 of the Civil  Code renders the employer responsible for the employee's moral and 
physical  integrity.  Several  judges,  namely:  the  Pretore  of  Trento,  decision  of  22  February 
1993; the Pretore of  Milano,  decision of  14 August  1991; the Pretore of Torino, decision  of 
26  January  1991;  the  Pretore  of  Frosinone,  decision  of  11 August  1989  have  ruled,  on  the 
basis  of  this  article,  that  sexual  harassment  is  a  moral  or  physical  injury  for  which  the 
employer  can be held  liable. 

Legal  remedies 

The Equal  Opportunities Act states that acts which are detrimental  to women because of their 
sex  are legally  null  and void  (Art.  15 of  Act  No  300  of  20 May  1970,  "Workers' Statute"). 
The  same  act also  includes  a series  of  penalties  and remedies  against  sexual  discrimination 
at the workplace  (Arts  15 and  16). 

Under  Article  2087  of  the  Civil  Code,  the  employer  is  liable  in  contract.  However,  Italian 
judges  (see  decisions  quoted  above)  have  also  relied  upon  Article  2043  of  the  Civil  Code 
(liability  in  tort),  which  establishes  the  general  principle  that  any  person  who  as  a 
consequence  of  tort  or  negligence  causes  an  injury,  has  a  duty  to  pay  compensation.  The 
judges  have  invoked  this  article  in  conjunction  with  Article  32  of  the  Italian  Constitution, 
which  guarantees  every  citizen  the fundamental  right to health,  in  order to enable a woman 
to recover  damages for  sexual  harassment  at work. 

The lack of "Just cause of dismissal" (Article 2119 of the Civil Code) can also be relied upon 
by  the  victim  of  sexual  harassment  who  refuses  to  submit  to  the  harasser  and  therefore  is 
dismissed  (see  decisions  quoted above). 

II) 

Role  of  the  social  partners 

Many  collective  agreements  contain  provisions  on  sexual  harassment  and  the  Community 
instruments  on  sexual  harassment  are often  cited  in the preamble to the agreements. 

In  the  food  distribution  sector,  a  1991  agreement  between  management  and  labour  in  the 
Caron SPA supermarket chain seeks to ensure a working environment free of conduct which 
is offensive  to the dignity  of  women  or men.  The  agreement takes note  of  the  Commission 
Recommendation  and Code  of Practice. 

The  national  collective  agreement  for  the  textile  sector  contains  provisions  on  sexual 
harassment at work.  Under this agreement,  management and labour will  examine incidences 
of  sexual  harassment  with  a view  to resolving  the problem  on a confidential  basis. 

The national collective agreement of  16 November  1994 for the banking and insurance sectors 
provides for the protection  of the dignity  of women and men at work.  This agreement takes 
explicit  account  of  the Commission  Recommendation  and the Code of Practice. 

18 

A  number of  agreements  have  been  signed  in the  public  sector  covering  certain  ministries, 
essential  public  services,  regional  and  local  bodies  and  non-economic  public  bodies.  A 
common clause is included in all of these agreements which protects the dignity of the person 
and provides for sanctions against those who perpetrate acts of sexual  harassment. In the case 
of acts amounting to sexual  harassment or offending  the dignity  of persons, the harasse»" «««y 
be laid off for days without pay.  Similarly,  Alitalia has agreed a policy  for the prevention of 
sexual  harassment  of  staff. 

The public sector agreements state that Equal Opportunities Commissions (EOCs), consisting 
of persons nominated in equal  measure by employers and trade unions, must be set up in the 
workplace  to,  inter  alia  deal  with  complaints  of  sexual  harassment.  In  the  private  sector, 
clauses  providing  for the  setting  up of EOCs have  also been  included  in some agreements. 

There are several  examples of good  practice at regional  and local  level,  inter alia  in the case 
of the administrations  of Toscana, Pisa, Torino, Genova and Catania, involving the adoption 
of  codes  of  practice  and,  in  the  case  of  Toscana,  also  dissemination  of  information  and 
training  courses  on  how  to combat  sexual  harassment. 

Ill)  Awareness-raising  campaigns  and  other  measures 

There is no information  on  any  public  awareness-rising  campaigns. 

LUXEMBOURG 

1) 

Legislation 

Applicable law 

There is no specific  statutory  provision  on sexual  harassment in Luxembourg.  No  legislative 
steps have been taken in this matter after the adoption of the Commission  Recommendation. 

The following  provisions of criminal  and civil  legislation  could be applied in cases of sexual 
harassment  at the workplace: 

-Under  criminal  law,  sexual  harassment  could  be  termed  an  offence  against  decency  (Art. 
378),  a public  offence  against  morality  (Arts  383-386)  or  as deliberate  assault  and battery 
(Art.  392). 
-As regards legislation on working relations, the law of 8 December  1981  on equal treatment 
of  men and women  as regards access to employment,  vocational  training and promotion and 
working  conditions  could  potentially  be  applied  to  cases  of  sexual  harassment  regarded  as 
specific  forms  of  sexual  discrimination. 
-More  generally,  the  articles  of  the  Civil  Code  on  the fulfilment  of  contractual  obligations 
could  in  theory,  apply  to  sexual  harassment  (in  particular  Article  1134  which  states  that 
agreements must be enforced  in good faith). 

The necessity  of  adopting measures to deal  with  sexual  harassment,  has been stressed  in the 
Government's  declaration  of  22  July  1994 before  Parliament. 

19 

Employers' Obligations 

The employer's  obligations  are to be determined by the tribunals according to the law found 
applicable  to cases  of  sexual  harassment. 

Legal  remedies  and other measures to help  victims 

Victims  of  sexual  harassment  may  make a claim  under the Equal  Treatment  legislation,  the 
Penal  Code  and  more  abstract,  Civil  Code  legal  concepts.  It is up to the tribunals to decide 
whether  these  laws  apply  to cases  of  sexual  harassment. 

II) 

Role  of  the  social  partners 

Many collective  agreements enable the employer to suspend the employment contract on the 
grounds  that  an  employee  has  committed  a  serious  offence  or  is  guilty  of  dishonest  or 
criminal  acts.  Such a provision  can theoretically  be used by an employer to take disciplinary 
measures  against  a perpetrator  of  sexual  harassment. 

III) 

Awareness-raising  campaigns  and  other  measures 

There is no evidence  of  any information  or awareness-raising  campaigns  in Luxembourg on 
this matter. 

NETHERLANDS 

I) 

Legislation 

Applicable  law 

New  legislation  on  sexual  harassment  has  come  into  force  through  an  amendment  to  the 
Working  Conditions  Act  (Act  of  29  June  1994). 

The  amended  Working  Conditions  Act  now  contains  a  definition  of  sexual  harassment.  It 
provides  for  the  protection  of  employees  from  sexual  harassment  by  colleagues  and  third 
parties such as suppliers, customers and patients.  It also applies to work which  is  performed 
off  the premises.  The Act leaves some latitude to employers and employee representatives to 
agree on the  precise  modalities  for  dealing with  sexual  harassment at work. 

Apart from  the Working  Conditions  Act,  provisions in the Penal  Code on rape and indecent 
assault  and  provisions  in  the Civil  Code  which  lay  down  the  duty  of  "good  employer" and 
"good employee" can, under some circumstances, be applicable in cases of sexual harassment. 

Employers'  Obligations 

The amended  Act provides for a duty  of care on the part of an employer to protect, as far as 
is  possible,  male  and  female  employees  from  sexual  harassment.  The  employer  must make 
it clear to all  staff  that sexual  harassment  is prohibited. 

20 

The  employer's  duty  of  care  extends  to  all  employees,  apprentices  and  trainees  in  the 
company. 

Employers  are now required  by law to draw up and  implement  a general  policy  on  protection 
of  workers.  Sexual  harassment  is not  explicitly  mentioned  in  the  requirements  for  the  plans 
but should  principally  be included  because of the employer's general  obligation to protect the 
workers  against  sexual  harassment.  Sexual  harassment  should  therefore  be  included  when 
employers  list  and  evaluate  risks  and  it  should  figure  in  the  annual  work  plan  and  report. 
Employees  and  Works'  Councils  shall  be  informed  of the  steps  undertaken  by  the  employer 
to  combat  sexual  harassment. 

The  Inspection  and  Information  Service  of the Ministry  for  Social  Affairs  and  Employment 
(I-SZW)  follows  up  on  the  fulfilment  of  these  duties  by  the  employer. 

Legal  remedies 

Under  the  Working  Conditions  Act,  employees  have  to  be  informed  how  victims  can  seek 
assistance  and  they  may  cite  sexual  harassment  as  a reason  for  interrupting  their  work. 

A regulation  concerning  complaints  of  sexual  harassment  in the civil  service was  adopted  in 
1994.  It  provides  for  confidential  counselling,  an  independent  complaints  committee  and  a 
complaints  procedure  for  civil  servants  in  the  central  government.  Regulations  to  the  same 
effect  covering other public employees such as the police and state-education  employees have 
also been  introduced. 

II) 

Role  of  social  partners 

The FNV Industriebond,  representing industrial  workers, has adopted  a code of behaviour on 
sexual  harassment and  provides special training on the issue to some union  officers.  The same 
organisation  has produced  a model  agreement on sexual harassment for  collective  negotiation 
which  provides,  inter alia,  for  a confidential  counsellor  to be  appointed  at company  level  to 
advise  and  assist  victims. 

Similarly,  the  FNV  Dienstenbond,  representing  clerical  workers,  has  adopted  a  policy  of 
preventing  sexual  harassment  in  the  union  itself  and  in  the  workplace.  Information  and 
training  are  provided  for  union  representatives.  Lists  of  qualified  union  officers  are  then 
circulated  to  members.  A  guide  on  how  to  implement  a  sexual  harassment  policy  has  been 
drawn  up,  as  well  as  a  model  agreement  for  collective  bargaining.  It  is  reported  that  more 
than  20  sectoral  agreements  deal  with  sexual  harassment,  covering  retail  and  wholesale, 
banking  and  insurance. 

The  Women's  Secretariat  of  FNV  disseminated  an  information  leaflet  on  sexual  harassment 
in  1992. 

In  1990,  the  Labour  Foundation  (Stichting  van  de  Arbeid),  a  consultative  body  comprising 
management  and labour,  published  a recommendation  on the prevention  of sexual  harassment 
at  work. 

21 

Ill)  Awareness-raising  campaigns  and  other  measures 

Television  advertisements  were  broadcast  in  early  1995,  to  raise  awareness  of  sexual 
harassment  and the  introduction  of  the new law. 

PORTUGAL 

I) 

Legislation 

Applicable  law 

Portugal  has  no  national  legislation  which  specifically  addresses  sexual  harassment  in  the 
workplace.  However,  provisions  of  the Labour Contract Law,  the Civil  Code  and the Penal 
Code  can be applicable  to  sexual  harassment. 

The  Labour Contract Law (Decree  Law of  24 November  1969) lays down  duties of mutual 
respect  for  employers  and employees,  Arts 20,  27  and 40,  see below  under (II) and (III). 

Under  Decree  Law  64-A/89  of  27  February  1989  (Art.  9-2),  the  employer  has the  right to 
dismiss  an employee  who: 

violates  the rights of  workers in the workplace, 
is responsible,  within  an undertaking,  for physical  violence,  insults or other  offenses 
punishable  by  law,  vis  a vis  the workers of that undertaking. 

Article  70  of  the  Portuguese  Civil  Code  protects  individuals  against  any  'illegal  offence  or 
threat of  illegal  offence  against their physical  or moral  person'. 

Even if sexual  harassment is not a crime itself in Portuguese law, a more severe act of sexual 
harassment  may  fall  under the category  of  crime  against the  liberty  of  the individual  in the 
Penal  Code. 

Employers' Obligations 

The  Labour  Contract  Law  requires  the  employer  to  respect  employees  as  colleagues  and 
provide employees  with  good  physical  and moral  working  conditions  (Article  19). 

Article  40  of  the  same  law  puts  an  obligation  on  the  employer  to  impose  disciplinary 
measures on an employee  who by  his/her conduct breaches the obligation  of  mutual  respect 
towards another employee  laid  down  in  articles  20  and 27. 

Legal  remedies 

Under the  1989 Decree Law, workers are authorised to terminate their employment contracts 
without  notice  if  they  are victims  of  offences  punishable  by  law  relating  to  their  physical 
integrity,  freedom,  honour or dignity.  These offences  have to be committed by the employer 
or his legal  representative  for the termination  to be authorised  (Art.  35-1  (b)  and (f)  ). 

22 

In  that  case,  the  workers  are  entitled  to  compensation  estimated  at  one  months'  salary  for 
every  year  they  have  worked  for  the  undertaking  (Art.  36). 

Furthermore,  through  an  amendment,  (Law  48/95),  Article  130 of  the Penal  Code gives the 
victims  of  sexual  harassment,  when  this  amounts  to  a  violent  crime  under  the  Penal  Code, 
(see  (I)  above),  the  possibility  of  receiving  compensation  from  the  state. 

Compensation  for a violation of the obligation  of Article 70 in the Civil Code, (see (I) above), 
is possible  through  Article  483  of  the  same code. 

II) 

Role  of  social  partners 

In  Portugal,  the Women's  Committee  of the General  Workers' Union  (UGT)  has been  active 
on  the  issue  of  sexual  harassment,  informing  branch  organisations  of  the  contents  of  the 
Commission  Recommendation.  The  UGT  included  the  prevention  of  sexual  harassment 
amongst  its working  objectives  in  1992. Sectoral  unions, for  example  in  the banking,  tourist 
and  food  sectors,  have  also  run  seminars  on  the  subject. 

In  the  textile  sector,  the  employer  organisation  Associaçào  Portuguesa  dos  Industrials  de 
Vestuario expressed  interest  in the guidelines contained  in the Commission  Code of  Practice 
and  is  including  the  issue  in  its next  round  of  collective  bargaining. 

However,  it  would  generally  appear  that  the  issue  of  sexual  harassment  is  not  a priority  for 
social  partners  in  the  context  of  collective  bargaining. 

III)  Awareness-raising  campaigns  and  other  measures 

In  1989,  the  Commission  for  Equality  and  Women'  Rights  issued  a  definition  of  scAuai 
harassment  which  is  comparable  with  the  definition  given  in  the  Code  of  Practice 
accompanying  the Commission  Recommendation.  This was followed  by  the publication  of a 
brochure  entitled  'Sexual  harassment  at  the  workplace'. 

In  1992, the same Commission  published  research  into sexual  harassment  at the workplace. 

23 

UNITED  KINGDOM 

I) 

Legislation 

Applicable  law 

A case of sexual  harassment  may be taken under the Sex Discrimination  Act  1975. More than 
260 cases  have been  heard  by  Industrial  Tribunals  since this principle  was established  in  the 
1986 Porcelli  case12. 

Under  section  71  of  the  Sex  Discrimination  Act,  the  Equal  Opportunities  Commission  (or 
Northern  Ireland  Equal  Opportunities  Commission)  may,  on  request,  conduct  an  enquiry  or 
initiate legal  proceedings in cases of sexual  harassment at the workplace. To date, no case has 
been  brought. 

The  Trade  Union  Reform  and  Employment  Rights  Act  1993  permits  tribunals  to  make  a 
restricted  reporting  order  on  cases  of  sexual  harassment,  so  that  potential  plaintiffs  are  not 
deterred  by  the  prospect  of  publicity. 

A criminal  offence  of'intentional  harassment' has been created under the Criminal  Justice and 
Public Order Act  1994. Although mainly aimed at addressing racial harassment, it also applies 
to  other  forms  of  harassment,  including  sexual  harassment. 

Employers'  obligations 

Under  the  1975  Act,  employers  are  liable  for  any  discriminatory  acts  on  the  part  of  their 
employees  carried  out  in  the  course  of  their  employment  unless  an  employer  can  show  that 
it  took  reasonable  steps  to  avert  such  acts. 

Legal  remedies 

There is no specific  provision  which  provides that a victim  of  sexual  harassment  may  resign 
but  in  Common  law,  an  employee  is  entitled  to  terminate  his/her  employment  contract  and 
at  the  same  time  bring  a  claim  for  unfair  dismissal  because  the  employer  has  committed  a 
repudiatory  breach  of  the  contract.  It  will  therefore  be  for  the  tribunal  to  ascertain  whether 
the  act  of  sexual  harassment  constitutes  repudiatory  conduct  on  the  part  of  the  employer.  If 
a  repudiatory  breach  of  contract  by  the  employer  is  established,  the  employee  can  also  be 
awarded  damages. 

12  Porcelli  v.  Strathclyde  Regional  Council  [1986]ICR  564,  IRLR  134 (Ct  of  Sess.) 

24 

If  an  act  of  discrimination,  including  sexual  harassment,  is  carried  out  in  the  course  of 
employment,  the  employer  is  liable  under  the  Sex  Discrimination  Act  1975.  In  two  recent 
cases13,  the  tribunals  did  not  find  acts  of  sexual  harassment  to  be  "an  improper  mode  of 
performing  authorised  tasks" by the employee and the complainant was left  without a remedy. 
Thus,  there  is  a  risk  that  some  cases  of  sexual  harassment  will  not  be  covered  by  the  Sex 
Discrimination  Act. 

Industrial  Tribunals  have  full  discretion  as  to the  level  of  compensation  to  be  awarded  to a 
successful  complainant. 

Under  the  Criminal  Justice  and  Public  Order  Act  1994  the  criminal  offence  of'intentional 
harassment', defined  as the use of abusive or insulting words or behaviour with intent to cause 
a  person  distress  or  harassment,  is  punishable  by  six  months  imprisonment  and  a  fine  of 
£5000. 

II) 

Role  of  social  partners 

Hie  Confederation  of  British  Industry and the Trades Union  Congress were consulted  on the 
drafting  of  government  booklets  on  sexual  harassment. 

The issue of sexual  harassment  has a high  profile  in the United  Kingdom  and  comprehensive 
policies  to  deal  with  sexual  harassment  at  work  have  been  adopted  in  large  sectors  of 
industry. 

In  the  clerical  sector,  many  of  the  major  British  banks  have  adopted  sexual  harassment 
policies.  Typically,  these  policies  state  that  sexual  harassment  is intolerable  and  make  it  the 
duty  of  staff  to  ensure  that  it  does  not  arise.  Informal  and  formal  complaints  procedures  are 
set  in  place,  involving  staff  representatives  and  management. 

Sexual  harassment policies have also been undertaken by some large supermarket chains, food 
companies  and  local  authority  employers. 

As regards the public service, a questionnaire has been sent out to all government departments 
and other public institutions in order to gauge awareness of the Commission  Recommendation 
and  Code  of Practice  and  to see whether  sexual  harassment  policies were being  put  in place. 

All  government  departments  have  taken  steps  to  inform  staff  that  sexual  harassment  is 
intolerable behaviour and  a serious disciplinary  offence.  Most departments  have a network  of 
trained  counsellors  to  deal  with  sexual  harassment  by  providing  confidential  advice  and 
support.  Sexual  harassment  is  discussed  in  many  of  the  training  programmes  provided  for 
staff. 

Sexual  harassment  policies  have also been  adopted  for  the police, the fire service and  British 
Rail. 

13 Tower  Boot  Limited  v.  Jones  1995  IRLR  513,  529  and  Waters  v.  Commissioner  of 

Police  of  the  Metropolis  1995 IRLR  531 

25 

Ill)  Awareness-raising  campaigns  and other measures 

In  order  to  raise  awareness  about  the  Commission  Recommendation,  the  Employment 
Department  published  a  brochure  for  employers  and  a  factsheet  for  employees.  These 
publications were drawn up following consultation with the Equal Opportunities Commission 
(EOC) and social  partners. They were distributed free of charge to all companies with more 
than  10 employees - approximately  100,000 companies. 

In  1993, the EOC for  Northern  Ireland published and disseminated two brochures on sexual 
harassment.  It  also  reproduced  the text  of  the  Commission  Recommendation  and  Code of 
Practice, drawing employers' attention to the guidelines contained in the code. Similarly, in 
1994  the  EOC  for  Great  Britain  published  and  distributed  two  publications  on  sexual 
harassment.,  one for  employers, the other for employees. 

26 

Survey  of  the  legislative  situation  in  the  new  Member  States  -  Austria,  Finland  and 
Sweden 

AUSTRIA 

Legislation 

Applicable  law 

In  December  1992, new  legislation  was passed,  amending the Equal  Treatment  Act of  1979, 
introducing  special  provisions  on  sexual  harassment. 

The amended  Equal  Treatment  Act  states that  discrimination  on grounds of sex  arises when, 
in connection  with  an employment  relationship,  an employee is subject  to sexual  harassment 
by the employer himself  (Article 2.1a.l)  and when the employer is guilty  of not providing an 
adequate  remedy  against  sexual  harassment  by  third  parties  (Article  2.1a.2). 

The  Act  gives  a definition  of  sexual  harassment  stating  three different  kinds of  conduct  that 
constitute  sexual  harassment.  Firstly,  when  there  is conduct  of  a  sexual  or  sex-based  nature 
in  the  workplace,  either  affecting  another  person's  dignity,  being  undesired  by  her/him,  or 
being  inappropriate  or  offensive  to her/him.  Secondly,  when  there  is conduct  of  a sexual  or 
sexed-based  nature  leading  to  an  intimidating,  hostile  or  humiliating  work  environment. 
Finally  in  cases  of  sexual  blackmail  in the  workplace. 

Employers'  obligations 

The remedies to be introduced by the employer in cases of sexual harassment by third parties, 
see above, may  be founded  on  legal  norms,  norms of  collective  agreements,  or norms  of the 
employment  contract. 

The  employer's  duty  to  provide  adequate  remedies  clearly  includes  taking  the  appropriate 
action  to end an act of sexual  harassment that comes to his or her knowledge.  It is somewhat 
unclear  if  this  duty  also  includes  the  creation  of  conditions  for  the  prevention  of  sexual 
harassment. 

Legal  remedies 

Action  by  a victim  of  sexual  harassment  can  be  taken  at  the  labour  court  up  to  six  months 
after  the  harassment  has  occurred. 

There  is  also  a  possibility  for  the  victim  of  sexual  harassment  to  complain  to  the  Equal 
Treatment  Commission  (ETC)  instead  of,  or  as well  as, taking  legal  action.  The ETC  is an 
administrative  body  consisting  of  three  government,  four  employer  and  four  employee 
representatives.  The  ETC  proceedings  are  not  public. 

27 

FINLAND 

Legislation 

Applicable  law 

A new Act on Equality Between Women and Men came into force in  1995. The Act prohibits 
direct  or indirect  discrimination  on the  basis of  sex  (Article  7).  The actions  of  an employer 
shall  be  deemed  to  constitute  discrimination  if  the  employer  neglects  to  ensure  that  an 
employee  is  not  subjected  to  sexual  harassment  (Article  8.2.4),  see below. 

The  Penal  Code  does  not  contain  prohibition  on  sexual  harassment  as  such  but  the  crimes 
against  dignity  and  sexual  abuse can be applicable  in  some cases. 

The  Act  leaves  it to the  courts to define  sexual  harassment. 

Employers'  obligations 

Under  the  1995  Act,  the  employer  has  an  obligation  to  promote  equality  in  working  life 
(Article  6),  which  includes  ensuring,  as far as possible,  that an employee  is not subjected to 
sexual  harassment  (Article  6.2.4  ). 

An employer with  at least 30 staff  shall  include measures to further equality between women 
and  men  in  the  annual  personnel  or  working  plan,  or  the  action  programme  for  labour 
protection  (Article  6  a).  Even  if the  specific  measures to be included  in  such  a plan  are not 
mentioned,  they  should certainly  include measures to combat sexual  harassment,  considering 
the  positive  obligation  the  employer  has  to  ensure  a working  environment  free  of  sexual 
harassment. 

Legal  remedies 

An employer  who has violated  the prohibition  on discrimination,  including not fulfilling  the 
obligation  as far as possible  to ensure that an employee  is not subject to sexual  harassment, 
shall  be liable  to  pay  compensation  to the affected  person  (Article  11). 

A claim  for  compensation  against  the  employer  shall  be  pursued  within  one  year  from  the 
date when  the  act  of  sexual  harassment  took  place. 

28 

SWEDEN 

Legislation 

Applicable  law 

The  Act  Concerning  Equality  Between  Men  and  Women  (SFS  1991:433),  hereafter  "the 
Equality  Act",  states  that an employer  may  not  subject  an employee  to  harassment  because 
the  latter  has  rejected  the  employer's  sexual  advances  or  lodged  a  complaint  about  the 
employer for sex discrimination (Article 22). This is also applicable to persons other than the 
employer who have the right to make decisions concerning an employee's working conditions. 

The  Equality  Act  does  not  prohibit  sexual  harassment  itself  in  the workplace  and  does not 
provide  a definition  of  sexual  harassment. 

The  Law on  Protection  of  Employment  is  applicable  when  an employee  resigns  because  of 
sexual  harassment  (see  below). 

Employers'  obligations 

According  to the Equality  Act,  an employer  shall  take,  with  regard  to her or his  resources, 
such measures as may be required to ensure that working conditions shall  be appropriate for 
both  men  and  women  (Article  4).  Furthermore,  the  employer  shall  strive  to  ensure  that no 
employee is subjected to sexual  harassment (Article 6). A general  obligation for the employer 
to  ensure  a  working  environment  free  of  discrimination,  is  repeated  in  the  Working 
Environment Act. This has, in explanatory directions (AFS 1993:17), been qualified to include 
sexual  harassment. 

The  measures  taken  to  ensure  equality  in  working  conditions  shall  be  included  in  a yearly 
equality  plan to be drawn  up by businesses with  10 or more employees.  An account  of  how 
the planned  measures  have been implemented  shall  be included in the plan for the  following 
year (Article  10 of  the  Equality  Act). 

The Equality  Ombudsman  has an obligation to control  that these plans actually  are drawn up 
in  accordance  with  the provisions  of  the Equality  Act. 

Legal  remedies 

An  employee  who  has  been  subjected  to  harassment  because  he  or  she  has  rejected  the 
employer's  sexual  advances or lodged a complaint about the employer for sex  discrimination 
(Article 22), is entitled to compensation from the employer for the moral injury caused by the 
harassment. 

If the requirements in Article 22 of the Equality Law are not applicable, as sexual  harassment 
is  not  prohibited  as  such  in  Swedish  law,  a victim  of  sexual  harassment  will  have  to  prove 
under the penal  procedural  rules that the discriminatory  behaviour constitutes  a crime under 
the  Penal  Code,  to  obtain  compensation. 

29 

An  employer  who  does  not  strive  to  ensure  that  employees  are  not  subjected  to  sexual 
harassment and/or does not draw up an equality plan, including inter alia measures to combat 
sexual  harassment,  may  be  ordered  under  penalty  of  a fine, to  fulfil  her  or his  obligation. 
Such  an order  may  be  made by  the Equal  Opportunities  Commission  at the  request  of  the 
Equality  Ombudsman. 

The  Equality  Ombudsman  may  also  present  a case  of  harassment  under  Article  22  of  the 
Equality  Act for  an individual  employee  or job  applicant before  the Labour Tribunal,  if the 
person  so  permits and the case can be of  importance  as a precedent. 

30 

CHAPTER II 

31 

CHAPTER  II 

THE  PRACTICAL  IMPLICATIONS  OF  THE  CODE  OF  PRACTICE 

Article  4  of  the  1991  Commission  Recommendation  on  the  protection  of  the  dignity  of 
women  and  men  at  work,  states  that  this  report  should  examine  the  degree  of  awareness  of 
the  Code,  its  degree  of  application,  the  extent  of  its  use  in  collective  bargaining  and  its 
perceived  effectiveness 

The previous chapter  has already  dealt with  some of these issues and the present chapter will 
build on the results of that presentation.  Firstly, the degree of awareness by certain a^iui» twù 
the measures taken  by them  to disseminate information  will be considered.  Secondly,  the use 
of the Code in legislation  and collective bargaining will be assessed, and finally  an evaluation 
will  be  made  on  the  effectiveness  of  the  Code  in  these  respects. 

Degree of  awareness  of  the  Code 

ft  is  difficult  to  gauge  precisely  the  degree  of  awareness  amongst  workers  and  employers 
across  the  European  Union  of  the  Commission  Recommendation  and  Code  of  Practice,  or 
of  the  problem  of  sexual  harassment  itself.  However,  an  examination  of  the  awareness  of 
National  Authorities,  Social  Partners  and  other  Actors  and  the  measures  taken  by  them  to 
raise  awareness  can  give  some  indication  of  the  situation. 

Measures  taken  by  National  Authorities 

According  to  the  Recommendation,  Member  States  are  recommended  to  take  action  to 
promote awareness that sexual  harassment is unacceptable (Art  1) and to encourage employers 
and  employee  representatives  to  implement  the  Code  (Art  3). 

It  is  clear  from  the  previous  chapter  that  national  authorities  differ  considerably  from  one 
another  in  the  approach  taken  to raise  awareness  about  the  problem  of  sexual  harassment  as 
addressed  in  the Commission'Recommendation. In general, very  little has been  done to raise 
awareness  of  the  problem  at  workplace  level. 

Where  the  subject  has  been  raised,  it  has  been  either  by  government,  by  national  equality 
agencies or by government in co-operation  with independent organisations. The methods used 
include research  reports, surveys, brochures, leaflets  and television  advertising. Clearly,  there 
are  limitations  as  to  the  impact  of  such  campaigns  on  the  population  as  a whole,  especially 
if  they  are  isolated  initiatives,  not  accompanied  by  collective  agreements  or  legislation. 

32 

Measures taken by  Social  Partners and other actors 

Regarding trade unions, there are some excellent examples of follow-up, but these tend to be 
the  exception  rather than the  rule.  Some  of the  organisations  which  have  achieved  notable 
results on this issue are those with a very  active women's department that have elaborated a 
comprehensive  strategy  to eliminate  sexual  harassment in the workplace. 

In general, the trade unions of the different countries have developed information leaflets and 
training  material  on  sexual  harassment  and  contributed  to  raising  the  issue  of  sexual 
harassment as a social  problem. Again, such isolated measures are not a very effective  means 
of  dealing  with the problem. 

Some  organisations  did go  further  and elaborated  a model  agreement  on  sexual  harassment 
roughly  corresponding  with the Code of Practice. 

Employers'  organisations  appear,  in  general,  to  be  less  aware  of  the  contents  of  the 
Commission's Code of Practice and seem rather reluctant to adopt measures to prevent sexual 
harassment  in  the  workplace.  In  some  countries,  (e.g.  the  United  Kingdom  and  Ireland) 
individual employers and their organisations have been more active, issuing policy  statements 
or guidelines  to prevent and combat  sexual  harassment at work. 

It is also important to underline the vital role played by women's associations in allowing the 
victims to be heard and in bringing the problem  of  sexual  harassment into the political  and 
social  debate.  They  also  assist  social  partners in the  development  of  procedures  on  how  to 
deal with sexual harassment at work. These women's associations often carry out research on 
the extent  and the financial  and personal  implications  of the problem  of  sexual  harassment. 
In  several  countries,  these  associations,  often  together with  social  partners, take  part in the 
direct preparation  of  legislation  on sexual  harassment. 

Measures taken at European  level 

As  previously  mentioned  in the introduction,  the Commission  has for  its  part undertaken a 
variety of measures in order to draw public attention to the problem of sexual harassment and 
Community  policy on this subject. It has published a guide to implementing the Commission 
Code  of  Practice  and has  supported information  seminars,  research  pilot  projects  and other 
actions. 

As  part  of  the  research  into  social  partner  initiatives  on  sexual  harassment,  questionnaires 
were sent to European organisations representing management and labour in the sectors under 
review,  regrettably  with  little response. However,  from  those replies received  the  following 
information  was obtained: 

In  the  food,  Horeca  and  service  sectors,  the  European  Industry  Committee  of  the  Food, 
Catering  and  Allied  Workers'  Union  within  the  IUF  transmitted  information  on  the 
Commission  Recommendation  to  national  affiliates  and  also  distributed  copies  of  the 
Commission's guide. 

33 

In the clerical  sector, Euro-FIET has informed  its member  organisations about the EC  policy 
on sexual harassment and adopted a motion  on the issue at its most recent congress. It intends 
to  draw  up  provisions  which  should  be  included  in  collective  agreements  on  the  issue. 

In  the  public  sector,  the  European  Public  Service  Committee  informed 
its  member 
organisations about the Commission Recommendation.  It has presented  a special  paper on the 
subject,  outlining  the  effects  of  sexual  harassment,  the  legal  framework  and  procedures  for 
dealing  with  it. 

Degree  of  application  of  the  Code  at  legislative  level  and  in  collective  bargaining 

Legislation 

Since the Commission Recommendation was adopted in  1991, three Member States (Belgium, 
France, and the Netherlands) have enacted  specific  legislation on sexual  harassment  requiring 
that  companies  have  pro-active  policies  to  prevent  and  to  combat  sexual  harassment,  and 
ensuring  easier  access  for  victims  to  counselling  and  advice  services  as  well  as  to  legal 
remedies.  Spain  has  introduced  a  prohibition  of  sexual  harassment  in  its  Penal  Code  and 
Germany  has  defined  sexual  harassment  in  its Equality  legislation.  Two  countries,  Italy  and 
Ireland,  are  in the  process  of  enacting  specific  legislation. 

introduced 
the  new  Member  States,  Austria  and  Finland  have  recently 
Regarding 
comprehensive  legislative  measures to combat  sexual  harassment.  The  Swedish  law takes up 
sexual  harassment  indirectly  but  does  not  prohibit  it  in  the  workplace  other  than  under 
specific  circumstances. 

The  remaining  countries  have  general  anti-discrimination  legislation  that  is  applicable  to 
sexual  harassment  in  varying  degrees.  With  the  exception  of  the  United  Kingdom,  where 
extensive  case-law  have  been  developed,  the  existing  legislation  in  these  countries  gives  no 
more than  a theoretical  possibility  of  dealing  effectively  with  sexual  harassment.  One  has to 
bear  in  mind  the  very  strict  procedural  requirements  applying  to  criminal  law  and  the 
difficulties  of construing abstract Civil Code principles to apply to cases of sexual  harassment. 
The  sparse  or  non-existent  case law  on the  matter  in  some  countries  is a clear  indication  of 
these  difficulties. 

Collective  Bargaining 

The social partners in Denmark, Italy, Ireland, the United Kingdom  and the Netherlands  have 
been  fairly  active.  Within  some  sectors  they  have  negotiated  collective  agreements  with 
explicit  provisions  on  how  to  combat  sexual  harassment  at  work.  Many  organisations  at 
national  level  have developed  model  agreements. However, there does appear to be a lack of 
information  within  the  social  partner  organisations  on  the  practical  implementation  of  such 
agreements  at  company  level.  It  is  clear  from  the  very  nature  of  the  subject  that  active 
involvement  of  management  and  labour  at  company  level  is  essential  in  putting  into  place 
adequate  procedures  to  deal  with  sexual  harassment  at  work. 

34 

Some development at social partner level can be seen in Spain, Belgium, France and Germany 
while in Greece, Portugal and Luxembourg sexual harassment does not seem to be considered 
as  a  priority  for  the  social  partners.  Even  though  the  Greek  reply  referred  to  a  National 
Collective  Agreement,  there  was  no  evidence  of  implementation  of  this  agreement  in  the 
workplace. 

Until  recently, the Social Partners in Germany have been passive, but in view of the adoption 
of the new  law,  it can be expected  that they will  start to negotiate  on the issue. 

Other Actors 

Elsewhere,  the Commission Recommendation  and Code have produced  some rather indirect 
effects,  by  instigating  discussion  on  the  topic,  influencing  official  bodies  to  commission 
research  or  to  develop  new  sexual  harassment  initiatives,  or  encouraging  and  legitimising 
certain measures  and even  perhaps a number of  court  decisions taken. 

In  Ireland,  the Employment  Equality  Agency,  in  cooperation  with  the  social  partners,  has 
drafted  a  National  Code  of  Practice  very  much  in  accordance  with  the  Commission 
Recommendation  and  Code.  It is  expected  that  when  this National  Code  receives  statutory 
recognition,  most  companies will  adopt its guidelines. 

Effectiveness  of  the  Code 

To  consider  the  effectiveness  of  the  Code  of  Practice,  one  first  has  to  turn  to  the 
Recommendation  and  the  Code  of  Practice  itself.  The  message  that  emerges  from  these 
documents  is  that  it  is  not  enough  to  simply  provide  a  legal  basis  for  victims  of  sexual 
harassment to sue their employers before a court. Rather, the approach must be preventive and 
pro-active,  in that a clear policy  is put in place and then carried out diligently  at all levels of 
decision-making. 

In  practical  terms,  legislation  and/or  model  agreements  without  proper  implementation  at 
company level will not be effective. Legislation and comprehensive collective agreements will 
not be effective  without  information  and vice versa. 

Legislation  which  defines  sexual  harassment  and which  is  aimed  specifically  at combatting 
it  through  practical  measures,  can  of  course  also  have  a  great  importance  for  raising 
awareness  of the problem. 

Looking at the three countries that have enacted comprehensive legislation specifically  aimed 
at actively  combatting sexual  harassment, the following  observations can be made. Firstly, it 
appears that government recognition and support for the initiatives against sexual  harassment 
were crucial  to the advancement  of the issue. 

35 

In these three countries,  three general  groups of actors were instrumental  in developing and 
maintaining sexual harassment policy: governments, the unions and employers' organisations 
and women's groups.  These groups had various degrees of  implication  in the major steps of 
the process: raising the issue  of  sexual  harassment as a social  problem; developing  a policy 
to prevent and to  combat the  problem; and translating that policy  into legislation  and other 
action.  None  of  these  countries  involved  all  the  actors  in  all  stages  and in  only  one  of the 
countries  was  work  done  to  build  on  the  legislative  stage  through  action  by  the  Social 
Partners  in  the  collective  bargaining  process  (at  least  for  the  sectors  covered  in  the 
Commission's  research  carried out during  1995). 

In  the  Netherlands,  the  union  organisations  elaborated  a  model  agreement  on  sexual 
harassment.  They  negotiated  its  adoption  at  company  level  with  the  employers.  Many 
companies  now  possess  collective  agreements which  contain this model  agreement. 

Regarding  the  other  countries,  there  will  be  considerable  improvement  if  the  planned 
legislation in Italy and Ireland is enacted.  The Code has also proved quite useful  in so far as 
it has sometimes been used by the social  partners,  mostly trade unions,  at the national  level 
in  the  drawing  up  of  model  agreements.  The  problem  remains  to  implement  these  model 
agreements  at company  level. 

What is  striking is the fact that,  even where it can be clearly  indicated that the Commission 
Recommendation  and Code have had some influence,  neither the national  authorities nor the 
social  partners have been able to provide substantial  information  presenting an evaluation of 
the  progress  made  and which  could  have  shown  the  extent  of  implementation  and the real 
effectiveness  of the Code at least within those countries or work sectors where there has been 
a relative  success  in this regard. 

36 

CONCLUSION 

37 

CONCLUSION 

Reviewing  the  results  of  the  present  report  the  following  observations  can  be  made. 

The report  shows that the Recommendation  and the Code of Practice  have had  at least  some 
impact in most Member  States. A variety  of approaches have been adopted in those  countries 
which  have introduced  specific  legislation  or important  amendments  to their  civil  and  penal 
codes  in  order  to  tackle  the  problem  of  sexual  harassment  in  a more  coherent  and  efficient 
way  as recommended  in the  1991  Code  of Practice. 

Firstly,  provisions  were  frequently 
introduced  in  legislation  or  in  national  collective 
agreements  explicitly  defining  and  prohibiting  sexual  harassment.  These  measures  have 
several  advantages:  they  give the victim  of  harassment  an  identifiable  remedy;  they  make  it 
clear  to  the  perpetrator  that  their  behaviour  is  unacceptable  and  they  have  a  general 
awareness-raising  effect. 

Secondly,  provisions  have  sometimes  been  enacted  in  legislation  and/or  in  collective 
agreements  putting  a responsibility  on the employer  to ensure that the working  environment 
is free  of sexual  harassment together with the possibility  for the employer to take  disciplinary 
measures  against  the  perpetrator.  This  has  a  crucial  preventive  effect  and  thus  avoids  the 
development  of  potential  problems. 

Thirdly,  agreements  and/or  legislation  have  occasionally  provided  for  the  introduction  of  a 
confidential  counsellor  giving  crucial  assistance  to the victim  of  harassment. 

These  measures  have  been  partially  taken  up  by  a  number  of  Member  States.  In  those 
Member  States  where  these  types  of  provision  have  been  implemented  through  national 
collective  agreements,  it  is  doubtful  whether  they  have  been  implemented  at  the  workplace 
level. As to awareness-raising  of the problem  of sexual harassment,  modest results have been 
achieved. 

The Code of Practice was drawn up with the intention  of actually  improving the situation  for 
employers and employees in the Community,  in respect of the problem  of sexual  harassment. 
To reach this goal, a comprehensive approach must be taken, involving actors at all levels and 
having  a  practical  impact  in  the  individual  workplace.  Such  an  approach  must  define  and 
prohibit  sexual  harassment,  provide for  effective  remedies and  counselling  and  create  a real 
awareness  of  the  problem. 

It  is  clear  that  even  if  considerable  progress  has  been  made  in  certain  countries,  the 
comprehensive  approach  needed  to  ensure  a working  environment  where  sexual  harassment 
can  be  effectively  prevented  and  combatted  has  generally  not  been  adopted.  This  can  be 
explained  at least in part by the inherent limitations of the Commission  Recommendation,  its 
success  depending  too  much  on  it being  widely  known  and  followed  on  a voluntary  basis. 

Thus,  even  if  the  1991  Recommendation  and  the  Code  of  Practice  certainly  do  constitute  a 
major  step forward,  it  is  clear  that  further  progress  needs to be made. 

38 

ISSN 0254-1475 

COM(96) 373 final 

DOCUMENTS 

EN 

05 

Catalogue number  : CB-C0-96-415-EN-C 

ISBN 92-78-07865-4 

Office for Official Publications of the European Communities 

L-2985 Luxembourg