Manuel Redondo, hijo, admitido en la Catedral

In general, it is recommended that employees should be trained on the rules of the organisation. This would not necessarily have the effect of making the rules binding upon the employees, but will increase the awareness of what constitutes inappropriate behaviour. Alternatively, incorporation of the policy in individual employment contracts is a way of making the policy binding upon the employees.

The statutory occupational safety and health policy is made binding upon the employees after the employer has notified the employees of the existence of the policy, for example, by publishing the policy on the organisation’s intranet. However, it should be noted that employees must observe certain work related practices regardless of whether they have been explicitly stated in the employer’s policies. As an example, work safety obligations must be observed by everyone at all times in the workplace.

9. LIMITS ON THE CONTENT OF THE POLICY

The policy may not restrict the employees’ fundamental rights. Restriction of fundamental rights might be acceptable, for example in situations where several fundamental rights are in conflict and only one can be applied. However, in order to be acceptable, restrictions on fundamental rights must meet general preconditions in that they must be prescribed by law, they must be accurate and limited and they must be acceptable and proportionate. Finally, they must also be in compliance with international human rights. Fundamental rights may never be restricted to a greater extent than absolutely necessary.

For example, the right to privacy is a Finnish fundamental right, to which this applies. The right to privacy entails the right to freely establish and maintain relations with other people. When assessing whether the right to privacy has been violated, both the victim’s and the harasser’s right to privacy must be taken into consideration.

10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY

Firstly, it should be noted that Finnish employment legislation provides relatively extensive protection to the employee. Several provisions in employment law are mandatory upon an employer and are in favour of the

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6. SUGGESTED POLICY CONTENT

A model harassment policy should:

• clearly express intolerance against inappropriate behaviour • underline that inappropriate behaviour will be assessed • outline what is and what is not allowed at the workplace

• outline what is and what is not considered to be appropriate behaviour at the workplace

• outline the procedures to be adopted by any person who feels that he or she has been treated inappropriately and who to turn to in the case of problems.

The Finnish Confederation of Professionals (‘STTK’) has prepared common guidelines on dealing with sexual harassment in workplaces. These guidelines define the concept of sexual harassment, provide the victim of the harassing behaviour with instructions on how to proceed in the reporting process, describe the measures to be taken by the person being accused of harassment and set out the measures to be taken by the employer in the event that the alleged harassment is doubted.

7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL

The employer has a statutory right to direct its employees, which means that the employer is entitled to issue work-related directions and orders to the employees at the workplace. The issuance of a policy on sexual harassment falls within the scope of the employer’s right to direct its employees. There is no general requirement to obtain consent to the policy from the employees. However, rules and instructions should be implemented in consultation with employees via the works safety committee or the cooperative committee. If neither committee has been established, rules and instructions should be drafted in cooperation with the employees.

In addition, the statutory occupational safety and health policy and its contents must be discussed with the employees or their representatives and the consent of the participating employees or of their representatives’ must be reflected in the plan. The equality plan drawn up under the Equality Act must be drafted in cooperation with the employees’ representatives and their consent will be reflected in the plan.

Sexual Harassment Prevention - FINLAND

11. EXTERNAL REPORTING REQUIREMENTS

The industrial safety delegate, the employee representatives and the occupational health care system all offer support to the individual victim in harassment-related matters.

The Finnish Equality Ombudsman and the Equality Board serve as supervisory bodies in matters related to sexual harassment. At the request of the Equality Ombudsman the employer must, within a reasonable time, disclose any documents and provide any information necessary for the surveillance of compliance with the Equality Act. In the absence of a request for information, the Equality Act does not require the reporting of sexual harassment related matters to external bodies.

The national occupational safety and health authorities are responsible for monitoring adherence to the Occupational Safety and Health Act at the workplace. The authorities are also responsible for monitoring adherence to legislation concerning harassment and inappropriate treatment. The actual monitoring is carried out through workplace inspections and other forms of investigation. In addition, the labour protection authorities, namely the Finnish Regional State Administrative Agencies and the Ministry of Social Affairs and Health, supervise compliance with occupational safety regulations, including the Occupational Safety and Health Act. These authorities place the employer under supervision to ensure that it puts an end to behaviour or practice at the workplace that causes potential risks to the health of its employees. Upon the detection of any failure to comply during inspection, the employer is given instructions or suggestions to follow in order to ensure statutory compliance. If it is considered necessary to impose a sanction on the employer, the authorities may issue a default fine or threat that the conditions of non-compliance must be remedied or removed at the employer’s expense. If the authorities suspect that a crime has been committed, the police may be asked to begin a criminal investigation.

The aforementioned requirements for providing information apply to the labour protection authorities as well. The work of the labour protection authorities is governed by the Act on Occupational Safety and Health Enforcement and Cooperation on Occupational Safety and Health at Workplaces (44/2006).

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employee. This should be considered by employers when preparing a policy on sexual harassment. In addition, data protection legislation and provisions concerning the termination of employment, among others, set limits to the employer’s ability to take certain action in harassment-related situations. Pursuant to the Employment Contracts Act, the employer must issue a warning to an employee who has neglected his or her duties arising from the employment relationship or committed a breach of these prior to termination of the employment relationship. This does not apply to termination of employment during a trial period, where notice can be served by both parties at any time during the period without any formal requirements or procedures. Termination of employment without a prior warning is usually possible only in extremely serious situations.

The purpose of the warning is to give the employee a chance to amend his or her conduct. The law does not define the number of warnings to be issued, neither is there any statutory requirement to give the warning in writing (although it is recommended for evidential reasons). Furthermore, the employer must give the warning within a reasonable time of having been informed of the employee’s behaviour. The warning must clearly state that further neglect or breaches may result in termination of the employment relationship.

Termination of an employment contract on grounds related to the employee’s person is usually not an option unless the employer establishes whether it is possible to re-locate the employee into another post to avoid termination of employment. However, this does not apply if the reason for giving notice is so serious that it would be unreasonable to expect the employment relationship to continue. In sexual harassment-related matters this is most likely to be the case if the harassing behaviour involves or comprises physical violence, for example, rape or attempted rape.

As mentioned above, the victim (or reporter) of the harassing behaviour is protected by the statutory prohibition against victimisation. Therefore, the employer may not, for example, substantially increase the supervision of an employee who has contacted the labour protection authorities because of an allegation of discrimination at work.

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14. REMEDIES AND SANCTIONS

It is primarily the harasser who is responsible for the harassment and its consequences. Liability for dealing with sexual harassment in the workplace shifts to the employer once the employer has been informed of the matter. Should the employer fail to comply with the provisions laid down in the Equality Act, the employer may be ordered to pay compensation to the victim at a minimum EUR 3,240. When considering the amount of compensation payable, attention will be paid to the nature and extent of the discriminating behaviour, as well as to other remuneration paid by virtue of the harassment. The Employment Contracts Act states that an employer that intentionally or negligently commits a breach of its duties under the employment relationship or the Act will be liable for any loss caused to the employee.

Employers that fail to do an analysis, work out a plan or to keep the Employment Contracts Act and the Occupational Safety and Health Act available for inspection, may be fined for breach of occupational safety and health in accordance with the Occupational Safety and Health Act.

Based on the Criminal Code the employer may, if violating or neglecting work safety regulations, be sentenced for a work safety offence to a fine or imprisonment for a maximum of one year. In addition, the employer may be sentenced for work discrimination to a fine or imprisonment for a maximum of six months, if the discrimination (as a result of sex or a comparable factor) took place during the employment without an important and justifiable reason and resulted in the employee being placed in an inferior position. The Criminal Code also contains a general provision on the prohibition of discrimination, based on which the employer may be sentenced to a fine or imprisonment for a maximum of six months.

The victim may always request compensation directly from the harasser based on the Tort Liability Act (412/1974), which is applied in non-contractual situations. If certain conditions are fulfilled, the victim may, for example, seek compensation for suffering. However, it should be noted that the leading principle in Finnish tort law is the principle of full compensation,according to which the injured party must be compensated for all harm caused.

It should also be kept in mind that a claim for compensation based on the Tort Liability Act does not restrict the victim’s option to seek compensation based on other legislation.

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C. RECOURSE

12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT

The employer is bound by the duties outlined in section 3 above and may therefore be liable for breaches committed because of non-observance of the obligations. Consequently, a victim of sexual harassment may refer to the employer’s failure to deal with the harassment and seek remuneration from the employer.

In addition, a victim of sexual harassment may request advice and guidance from the Equality Ombudsman. In such cases the Equality Ombudsman must take action in order to ensure that the harassing behaviour comes to an end. The Equality Ombudsman may also bring the matter to the Equality Board, which may issue a statement if the matter is of public interest in relation to the objectives of the Equality Act.

If the Regional State Administrative Agency suspects that a labour offence has been committed in the workplace, the agency will inform the police about its suspicion and the public prosecutor will decide whether or not to press charges. The victim may also report the alleged harassment to the police.

13. PROVING A CLAIM

Claims of sexual harassment are often hard to prove, since there is seldom written or physical evidence of harassment. Moreover, the victim may find it difficult to come forward with details of the harassment.

The Finnish Code of Judicial Procedure (4/1734) states that in a civil case the plaintiff must prove the facts that support the action. In a criminal case (e.g. if the public prosecutor takes legal action against the harasser based on the Criminal Code) the same applies: the plaintiff must prove the facts that support his or her claim. The latter is supported by the presumption of innocence. According to this, an alleged perpetrator will be deemed innocent until proven guilty.

The victim’s burden of proof is however mitigated in accordance with the Equality Act. The Equality Act states that if a person, who considers herself or himself to have been subjected to discriminatory behaviour, presents evidence on which it can be presumed that a case of gender-based discrimination has taken place, the defendant must then prove that there has been no violation. However, this provision does not apply in criminal cases.

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D. IMPORTANT LESSONS

15. IMPORTANT LESSONS FROM CASE LAW

There is very little Finnish case law on sexual harassment in the workplace. In one of its rulings from 2010, the Supreme Court held that the managing director of a company was liable for the serious sexual harassment of several female employees because he had, for example, sat down astride them and pulled up their shirts and tried to unhook their underwear. The court found that the managing director grossly took advantage of the employees’ dependence on him. The employees had not directly opposed the managing director’s actions, but the court found that because of the dependency, i.e. the fact that the employees were dependent on his approval at work, no explicit opposition was required. The managing director was sentenced for both work discrimination and work safety offences. The chairman of the board of directors of the company was also sentenced for a work safety offence, as he was aware of the harassing activity but did not try to put an end to it. The managing director was given a suspended sentence of eight months and a supplementary fine, while the chairman of the board of directors was fined. In a case of the Helsinki Court of Appeal the employer terminated the employee’s employment based on the fact that the employee had made a claim of sexual harassment. The industrial safety delegate had undertaken negotiations with the employer on behalf of the employee, after which the employee took sick leave. Shortly thereafter the employee’s employment contract was terminated without notice and another employee was hired instead. As grounds for cancellation of employment the employer pleaded lack of loyalty on the part of the employees and claimed that the employee had not been able to present any evidence of the occurrence of sexual harassment. Based on the above, the employer found that the statutory prohibition of victimisation did not apply. However, the court ruled otherwise and the Court of Appeal found that there were no grounds for termination of employment and upheld the judgment of the District Court by ordering the employer to pay compensation under the Equality Act.

Overall, the cases dealt with in Finnish courts have mainly been settled in favour of the victim of harassment, sometimes despite a lack of cogent evidence.

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A. DEFINITIONS AND GENERAL DUTIES 169

1. DEFINITION OF SEXUAL HARASSMENT 169

2. LAWS PROHIBITING SEXUAL HARASSMENT 169

3. DUTIES ON EMPLOYERS 170

B. SEXUAL HARASSMENT POLICIES 170

4. BENEFITS OF A SEXUAL HARASSMENT POLICY 170

5. WHAT THE POLICY MUST CONTAIN 170

6. SUGGESTED POLICY CONTENT 171

7. CONSENT BY EMPLOYEE REPRESENTATIVES AND/OR THE WORKS COUNCIL 171

8. MAKING THE POLICY BINDING ON EMPLOYEES 171

9. LIMITS ON THE CONTENT OF THE POLICY 172

10. LIMITS ON ACTION AN EMPLOYER CAN TAKE UNDER THE POLICY 172

11. EXTERNAL REPORTING REQUIREMENTS 172

C. RECOURSE 172

12. RECOURSE FOR VICTIMS OF SEXUAL HARASSMENT 172

13. PROVING A CLAIM 172

14. REMEDIES AND SANCTIONS 173

D. IMPORTANT LESSONS 173

Sexual Harassment Prevention - FRANCE

By: Anne-Laure Périès and Catherine Bertholet1