New judgment: Operation manager's sexual harassment did not result in compensation

Recently, the Eastern High Court ruled that a company was not obliged to pay compensation to an employee even though she had been sexually harassed by the department’s operations manager. According to the Eastern High Court, there was no identification between the harassing operations manager and the employer, and compensation was therefore not awarded to the employee.

An office assistant employed with the police had been sexually harassed for a long time by the operations manager, who was the office assistant’s superior. Among other things, the operations manager had touched the assistant’s thigh, made offending statements, had asked her whether she wanted to know when he had last “had some fun” and asked about her sexual orientation.

Every time, the operations manager harassed her, she told him off, and she had also prepared notes on his conduct.

After approximately four months, the office assistant complained to the management, and the same day a meeting was held with the participation of the shop steward and representatives from the Police Association. Shortly after, the office assistant reported sick.

The police district investigated the matter and consulted the involved parties, and the operations manager was given a warning for inappropriate conduct.

The office assistant was offered psychological counselling, but after long-term sickness absence she was dismissed. She then brought legal action against the police district claiming compensation under the Equal Treatment Act.

The district court ruled in favour of the police district as the court found that the office assistant had not proved that it was sexual harassment. On the contrary, the operations manager’s conduct was - perhaps incorrect - attempts to fit into the department’s jargon and tone.

NO IDENTIFICATION BETWEEN THE HARASSING MANAGER AND THE EMPLOYER

The office assistant brought action before the High Court which found that the operations manager’s conduct was sexual harassment contrary to the Equal Treatment Act - although the tone could at times be crude and below the belt.

But despite this, the High Court found that the office assistant was not entitled to compensation. The reason was that the operations manager was employed as middle manager with several superiors. He did not have any responsibilities in relation to the staff, and he could not give warnings on his own initiative.

Secondly, as employer, the police district had taken a number of measures, including meetings, given the operations manager a warning, tried to relocate the office assistant and offered psychological counselling.

On this basis, the High Court found that the operations manager was not identifiable with the employer, and there was therefore no basis for awarding compensation to the office assistant.

ESSENTIAL THAT THE EMPLOYER HAS IMPLEMENTED PROCEDURES FOR REPORTING OF INFRINGING CONDUCT

In a previous judgment concerning sexual harassment from 2001, the Western High Court found that there was identification in terms of liability between a harassing manager and the employer. The manager sexually harassed an employee who was his subordinate. The employer was ordered to pay compensation for the psychological and physical injury because of the manager's sexual harassment.  

It is important to note that the circumstances of the two cases are different. In the recent judgment, the operations manager was not identifiable with the employer in such a way that the employer could become liable for the operations manager’s conduct, but there was identification in the case from 2001.  

In the recent judgment, the employer tried to correct the problem with a number of measures, and the High Court therefore found that there was no basis for the employer being liable for the operations manager’s harassing conduct. In the previous judgment, the employer had not exhausted all options to correct the problem.

The Eastern High Court judgment is therefore in line with previous case law, and it must be expected in the future that employees in cases where the sexually harassing party may be sufficiently identified with the employer due to e.g. managerial powers, and where the employer has not tried to handle the problem, compensation will be awarded based on identification.

As an employer, it is therefore important to implement procedures that may introduce relevant and appropriate measures in connection with employees reporting infringing conduct from colleagues.

contacts

Finn Schwarz

Managing Partner

Maria Schmiegelow

Attorney