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04 December 2019
A care assistant was treated in a sexually offensive manner by a disabled individual for whom she had been hired to care. The Eastern High Court determined that the care assistant's employer was not responsible for the disabled individual's behaviour, but that the employee's subsequent dismissal contravened the Act on Equal Treatment of Men and Women.
The Act on Equal Treatment of Men and Women prohibits sexual harassment. However, employers can be held responsible for sexual harassment only if:
The care assistant was hired to care for a person with brain damage and a physical disability. She alleged that during the course of her work, the disabled individual made sexual comments and touched her breasts and crotch. The care assistant always objected to the disabled individual's offensive behaviour.
At some point, the disabled individual informed the employer that he did not want to continue working with the care assistant. Prior to that, the care assistant had filed a complaint regarding the disabled individual's behaviour. Shortly after, she was dismissed because the disabled individual felt that their relationship lacked chemistry. The care assistant and her trade union initiated proceedings.
The care assistant believed that the employer was responsible for her being sexually harassed by the disabled individual and alleged that in her day-to-day work, the disabled individual had acted as her supervisor on behalf of the employer. In addition, she believed that the employer – which had known about the disabled individual's behaviour – had failed to protect her against the harassment to a reasonable extent. The care assistant further alleged that she had been dismissed on the grounds of her complaint regarding the harassment carried out by the disabled individual.
The high court found that the fact that the disabled individual had scheduled when the care assistant's tasks were to be performed did not mean that he had managerial authority as such over her. Thus, the disabled individual could not be considered to be identical to the employer.
The high court also held that the employer had fulfilled its obligation to provide a harassment-free working environment and protect its employees against harassment to a reasonable extent based on the continuous discussions between the care assistant and her direct manager about how the care assistant should handle the behaviour of the disabled individual.
Dismissed on grounds of claim for equal treatment
The high court found that the care assistant had shown facts establishing a presumption that she had been dismissed on the grounds of her complaint regarding the disabled individual's offensive behaviour and, thus, her claim for equal treatment.
In its decision, the high court attached importance to the fact that the employer had not offered the care assistant employment with another individual as an alternative to dismissal.
Accordingly, the care assistant was awarded compensation of six months' pay.
The fact that an employer does not employ someone who commits sexual harassment against its employee does not mean that the employer is relieved of its obligation to provide a harassment-free working environment and protect its employees from harassment to a reasonable extent.
As part of this obligation, employers may have to consider the option of transferring an employee to another position if the harasser is a customer or business partner.
For further information on this topic please contact Yvonne Frederiksen at Norrbom Vinding by telephone (+43 35 25 3940) or email (email@example.com). The Norrbom Vinding website can be accessed at norrbomvinding.com.
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