European Commission’s Code of Practice

European Commission’s Code of Practice 1991 on Sex Harassment

PROTECTING THE DIGNITY OF WOMEN AND MEN AT WORK

A code of practice on measures to combat sexual harassment.

Webmasters note: Employment tribunals should refer to the European Commission’s Code of Practice for definitions of sexual harassment and the steps employers should take to discharge liability for guidance in these cases. I have pasted excerpts from the ECCOP 1991 and highlighted the relevant parts. Clickhere for a full copy of the code.

The following applies:

1. Introduction:

Some specific groups are particularly vulnerable to sexual harassment…women with disabilities.

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.

2. Definition:

Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work (1). This can include unwelcome physical, verbal or non-verbal conduct….and/or such conduct creates an intimidating, hostile or humiliating working environment for the recipient (1).

The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive….although one incident of harassment may constitute sexual harassment if sufficiently serious.

 3. THE LAW AND EMPLOYERS’ RESPONSIBILITIES:

In certain circumstances, and depending upon national law, sexual harassment may also be a criminal offence or may contravene other obligations imposed by the law, such as health and safety duties, or a duty, contractual or otherwise, to be a good employer.Since sexual harassment is a form of employee misconduct, employers have a responsibility to deal with it as they do with any other form of employee misconduct as well as to refrain from harassing employees themselves.

Since sexual harassment is a risk to health and safety, employers have a responsibility to take steps to minimize the risk as they do with other hazards. Since sexual harassment often entails an abuse of power, employers may have a responsibility for the misuse of the authority they delegate.

This code, however, focuses on sexual harassment as a problem of sex discrimination. Sexual harassment is sex discrimination because the gender of the recipient is the determining factor in who is harassed. Conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work in some Member States already has been found to contravene national equal treatment laws and employers have a responsibility to seek to ensure that the work environment is free from such conduct (3).

Similarly, a procedure to deal with complaints of sexual harassment should be regarded as only one component of a strategy to deal with the problem. The prime objective should be to change behaviour and attitudes, to seek to ensure the prevention of sexual harassment.

4. COLLECTIVE BARGAINING

The majority of the recommendations contained in this code are for action by employers, since employers have clear responsibilities to ensure the protection of the dignity of women and men at work.

5. RECOMMENDATIONS TO EMPLOYERS

It should be emphasized that a distinguishing characteristic of sexual harassment is that employees subjected to it often will be reluctant to complain.An absence of complaints about sexual harassment in a particular organization, therefore, does not necessarily mean an absence of sexual harassment. It may mean that the recipients of sexual harassment think that there is no point in complaining because nothing will be done about it, or because it will be trivialized or the complainant subjected to ridicule, or because they fear reprisals.Implementing the preventative and procedural recommendations outlined below should facilitate the creation of a climate at work in which such concerns have no place.

A. Prevention

(i) Policy statements:

In addition, it is recommended that the statement explain the procedure which should be followed by employees subjected to sexual harassment at work in order to obtain assistance and to whom they should complain; that it contain an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and that employees will be protected against victimization or retaliation for bringing a complaint of sexual harassment.

(ii) Communicating the policy

Once the policy has been developed, it is important to ensure that it is communicated effectively to all employees, so that they are aware that they have a right to complain and to whom they should complain; that their complaint will be dealt with promptly and fairly; and that employees are made aware of the likely consequences of engaging in sexual harassment. Such communication will highlight management’s commitment to eliminating sexual harassment, thus enhancing a climate in which it will not occur.

(iii) Responsibility

All employees have a responsibility to help to ensure a working environment in which the dignity of employees is respected and managers (including supervisors) have a particular duty to ensure that sexual harassment does not occur in work areas for which they are responsible. It is recommended that managers explain the organization’s policy to their staff and take steps to positively promote the policy. Managers should also be responsive and supportive to any member of staff who complains about sexual harassment, provide full and clear advice on the procedure to be adopted, maintain confidentiality in any cases of sexual harassment and ensure that there is no further problem of sexual harassment or any victimization after a complaint has been resolved.

(iv) Training

An important means of ensuring that sexual harassment does not occur and that, if it does occur, the problem is resolved efficiently is through the provision of training for managers and supervisors. Such training should aim to identify the factors which contribute to a working environment free of sexual harassment and to familiarize participants with their responsibilities under the employer’s policy and any problems they are likely to encounter.

In addition, those playing an official role in any formal complaints procedure in respect of sexual harassment should receive specialist training, such as that outlined above. It is also good practice to include information as to the organization’s policy on sexual harassment and procedures for dealing with it as part of appropriate induction and training programmes.

B. Procedures

The development of clear and precise procedures to deal with sexual harassment once it has occurred is of great importance. The procedures should ensure the resolution of problems in an efficient and effective manner. Practical guidance for employees on how to deal with sexual harassment when it occurs and with its aftermath will make it more likely that it will be dealt with at an early stage. Such guidance should of course draw attention to an employee’s legal rights and to any time limits within which they must be exercised.

(ii) Advice and assistance

Whatever the location of this responsibility in the organization, it is recommended that the designated officer receives appropriate training in the best means of resolving problems and in the detail of the organization’s policy and procedures, so that they can perform their role effectively. It is also important that they are given adequate resources to carry out their function, and protection against victimization for assisting any recipient of sexual harassment.

(iii) Complaints procedure

By its nature sexual harassment may make the normal channels of complaint difficult to use because of embarrassment, fears of not being taken seriously, fears of damage to reputation, fears of reprisal or the prospect of damaging the working environment. Therefore, a formal procedure should specify to whom the employee should bring a complaint, and it should also provide an alternative if in the particular circumstances the normal grievance procedure may not be suitable, for example because the alleged harasser is the employee’s line manager. It is also advisable to make provision for employees to bring a complaint in the first instance to someone of their own sex, should they so choose.

(iv) Investigations

It is important to ensure that internal investigations of any complaints are handled with sensitivityand with due respect for the rights of both the complainant and the alleged harasser. The investigation should be seen to be independent and objective. Those carrying out the investigation should not be connected with the allegation in any way, and every effort should be made to resolve complaints speedily – grievances should be handled promptly and the procedure should set a time limit within which complaints will be processed, with due regard for any time limits set by national legislation for initiating a complaint through the legal system.

It is recommended as good practice that both the complainant and the alleged harasser have the right to be accompanied and/or represented, perhaps by a representative of their trade union or a friend or colleague; that the alleged harasser be given full details of the nature of the complaint and the opportunity to respond, and that strict confidentiality be maintained throughout any investigation into an allegation. Where it is necessary to interview witnesses, the importance of confidentiality should be emphasized.

(v) Disciplinary offence:

It is recommended that violations of the organization’s policy protecting the dignity of employees at work should be treated as a disciplinary offence and the disciplinary rules should make clear what is regarded as inappropriate behaviour at work. It is also good practice to ensure that the range of penalties to which offenders will be liable for violating the rule is clearly stated and also to make it clear that it will be considered a disciplinary offence to victimize or retaliate against an employee for bringing a complaint of sexual harassment in good faith.

Where a complaint is upheld and it is determined that it is necessary to relocate or transfer one party, consideration should be given, wherever practicable, to allowing the complainant to choose whether he or she wishes to remain in their post or be transferred to another location. No element of penalty should be seen to attach to a complainant whose complaint is upheld and in addition, where a complaint is upheld, the employer should monitor the situation to ensure that the harassment has stopped.

Even where a complaint is not upheld, for example because the evidence is regarded as inconclusive, consideration should be given to transferring or rescheduling the work of one of the employees concerned rather than requiring them to continue to work together against the wishes of either party.