The Supreme Court recently pronounced a judgment in which a female employee was awarded damages for non-economic loss after being subjected to sexual harassment by customers. The verdict provides useful clarifications regarding the conditions, and especially the lower limit, for sexual harassment.
A female industrial mechanic experienced unwanted approaches from two of the repair yard's customers. One of the customers had placed his hands under the employee's sweater on the lower part of her back while she was sitting on the floor performing her work tasks. On a later occasion, the customer pretended to touch her crotch. Another customer had approached the woman, repeatedly tickled her waist and on one occasion patted her on the buttocks.
On 22 December 2020 the Supreme Court ruled on the matter. Both perpetrators were sentenced to pay the woman damages for non-economic loss as a result of a breach of the prohibition on sexual harassment in the Equality and Discrimination Act.
Following the High Court's ruling, the employer was also held liable for failing to prevent and seek to prevent sexual harassment. The employer, for its part, chose not to appeal the High Court's ruling.
In the judgment, the Supreme Court specified for the first time the detailed content of the conditions for sexual harassment under the equality and discrimination legislation.
Equality and discrimination legislation
On the basis of the law, three conditions must be met for acts or behaviours to be considered sexual harassment:
- there must be sexual attention;
- the attention must be unwanted from the person who is subjected to the sexual attention; and
- the attention must be perceived as troublesome.
There must be sexual attention
A basic condition for sexual harassment is that the perpetrator's behaviour is of such a nature that it must be regarded as sexual attention. The attention can occur in a physical, verbal or non-verbal form. Sexualised body language is an example of the latter.
The Supreme Court stated that sexual attention requires that the attention be sexually emphasised or of a sexual nature. Whether the attention can be considered to be of such a nature depends on an objective assessment of the specific relationship. An important assessment factor will be the context in which the actions or behaviour took place. This is in accordance with the preparatory work for the law.
The current case illustrates that the term 'sexual attention' is not reserved for acts that are distinctly sexualised. It was considered sufficient that the perpetrator had placed his hand on the employee's lower back, under her sweater. The Supreme Court emphasised the relevant context; the woman sat so that she was barred from protecting herself from or rejecting the approach. It was considered clear that the behaviour was sufficiently sexually explicit. The perpetrator's intentions behind the attention were not considered to be relevant to the assessment.
No harassment without unwanted attention
It is a fundamental condition for sexual harassment that the sexual attention is unwanted from the person receiving the attention. What is unwanted will be individually decided. However, the Supreme Court emphasised that the perpetrator in principle has the right to be made aware that the attention is unwanted.
If the perpetrator continues, the condition may be met. This point is illustrated by the current case, where the employee's reaction made it clear to the perpetrator that she did not accept him touching her. Her reaction became important for the assessment of the perpetrator's later behaviour.
It is not an absolute requirement that the person exposed to the attention must express that the sexual attention is unwanted. The Supreme Court emphasised that cases where it is not expressed that sexual attention is unwanted will be subject to a specific assessment. The assessment focuses on whether the perpetrator should have understood that the sexual attention was unwanted.
The judgment indicates several factors that will be important for the assessment of whether the perpetrator should have understood that the sexual attention was unwanted. In addition to the nature of the behaviour, it will be relevant whether:
- there is a skewed power relationship or structure between the parties;
- the perpetrator should understand that the person receiving the attention may fear any negative consequences of rejection; and
- the person receiving the attention is in a particularly vulnerable situation.
Lower limit for sexual harassment
Unwanted sexual attention will be considered sexual harassment when such attention is troublesome. Whether the lower threshold is met will depend on an overall assessment. In the assessment, it will be relevant to emphasise:
- the experience of the relationship;
- whether the attention has had negative consequences of a physical, mental or occupational nature;
- the nature of the actions; and
- in what context the actions took place.
The verdict states that not all undesired sexual attention is affected. Some severity must be required.
In the case, the Supreme Court emphasised that the employee had been in a particularly vulnerable situation. She was the only woman in the business and performed tasks that had to be completed without delay. The subjective conditions were also important. The unwanted sexual attention had led to mental strain and sick leave and the woman had terminated her employment.
It can be deduced from the judgment that intensity will be a significant factor in the assessment of whether sexual harassment exists, including whether the acts are repetitive and have taken place over a certain period.
The ruling contributes to the understanding of the conditions for sexual harassment and clarifies the legal situation in the area. However, the judgment does not imply a change in the state of law.
For employers, the various aspects of the matter are a reminder of the importance of complying with their duty to actively prevent and seek to prevent sexual harassment in the workplace.
