Sexual harassment is defined as any unwelcome behavior of a sexual or gender-based nature that violates a person's dignity. An isolated act can be enough. A hand on the buttocks or indecent proposals immediately come to mind when one speaks of sexual harassment.
But other behaviors can also constitute sexual harassment, for example, when an employee is confronted with pornographic images. Sometimes it is not easy to distinguish between inappropriate comments and sexual harassment.
The employer must protect the health of all employees, from the trainee to the CEO. This duty requires the employer to take all reasonable steps to prevent and stop sexual harassment in the workplace. These measures depend on the situation and may range from a simple warning to termination with immediate effect.
The employer must issue a directive to combat sexual harassment. A procedure must be in place so that employees know what to do in the event of sexual harassment. The employer must establish a confidential person who must have certain characteristics of independence, neutrality and confidentiality.
The employer is required to prevent and stop sexual harassment in the workplace. Due to the advancement of technology, this harassment can move to the Internet and social networks. This can be the case if an employee sends a message on Facebook to one of his or her colleagues making indecent, insistent and unwanted propositions. What is the employer's responsibility?
In particularly serious cases, the employee may fear for his or her integrity if he or she returns to the workplace. If the employer does not take adequate measures, the employee may refuse to come to work. The employer will have to pay his or her salary.
The employee may also terminate the employment contract with immediate effect. If this immediate termination is justified, the employer will have to pay a fairly high compensation.
Equality between women and men
The Law on Equality between Women and Men (LEg) specifies that sexual harassment is a form of discrimination. In the event of reprisal leave, the LEg provides for specific rules and sanctions.
Thus, if a man or woman is fired because he or she asked his or her employer to take action against sexual harassment, the situation is more than delicate. Under certain conditions, the dismissal will be void. The employer will have to reinstate the employee to his or her job.
A company cocktail party is often synonymous with champagne and a relaxed atmosphere. However, it is a professional event. The employer must ensure that the event does not get out of hand. When alcohol is involved, sexual harassment is never far away...
Termination with immediate effect
When faced with accusations of sexual harassment, the employer's first instinct is sometimes to dismiss the perpetrator with immediate effect. However, the employer must be careful. A termination with immediate effect will only be justified in serious and proven cases of sexual harassment.
Inability to work and dismissal
When sexual harassment is long-lasting or reaches a certain level of severity, it is not uncommon for an employee to become incapacitated for work. As long as the incapacity is limited to the employee's position, is the employee protected from being fired? No, according to the Federal Court!
However, this situation must be treated with extreme caution. If an employer dismisses an employee when he or she has not taken adequate measures to prevent or stop the sexual harassment, the dismissal will be qualified as wrongful. The employer will have to pay compensation of up to 6 months' salary. In serious cases, the employee may request additional compensation for moral damages.
In case of incapacity to work due to a conflict at work, the employee usually provides a medical certificate. The certificate sometimes mentions that the employee is prevented from working because of sexual harassment at her workplace. What is the probative value of such a certificate?
Love at work
Romance between colleagues around the coffee machine is quite common. Employers are often afraid of accusations of sexual harassment if they break up... They are tempted to simply prohibit any romantic relationship between colleagues. Does they have the right to do so?
Employees are in principle free to choose their dress code. However, certain outfits that are too short can lead to inappropriate comments or gestures. The employer must take measures to protect his or her employees and establish a dress code.
When drafting employment certificates, employers must balance their duty to tell the truth with their duty of care to their employees. Whether and how the employer should mention an act of sexual harassment caused by the employee will depend on the seriousness of the case.