The Working Environment Authority (the “WEA”) has introduced new guidelines concerning harassment at the workplace. The guidelines, which also cover bullying and sexual harassment, describe what constitutes harassment, and how the employer can prevent harassment.

Mental stress due to bullying and sexual harassment may have significant negative implications for an employee and the working environment. Recently, focus intensified on the mental working environment, and the WEA has made decisions concerning harassment which constitutes a risk for the employee’s safety and health.

The guidelines specify the employer’s obligations, analyse the potential reasons for and implications of harassment and propose a number of more specific measure to prevent the unhealthy consequences of harassment.

HARASSMENT MUST BE PREVENTED

Under the Working Environment Act, it must be ensured in connection with the performance of the work that the work does not involve a risk of physical or mental disturbance due to the harassment.

The guidelines specify that it is considered harassment when one or more persons grossly or on several occasions expose a colleague to a conduct which the colleague considers degrading. Harassment is a collective term for bullying, sexual harassment and other kinds of harassment, for instance:

  • Offensive remarks
  • Attack on or criticism of the employee’s private life
  • Hostility or silence in response to questions or attempt to make conversation
  • Unpleasant teasing
  • Offensive written messages, text messages, photos and videos, including on social media.

It is of no importance to the assessment whether the actions reflect thoughtlessness or a wish to offend a colleague. The central issue is how the person experiences the harassment.

REASONS AND IMPLICATIONS

The guidelines provide an overview of inappropriate working environment problems that may give rise to harassment. The employee’s work and organisational or managerial circumstances may result in harassment developing. For instance, if the employees experience unfair treatment, are subject to unreasonable high or undefined demands or do not experience sufficient conflict management.

In addition, the guidelines specify potential health reactions to harassment ranging from light anxiety to concern or chronic stress. The guidelines point at a number of symptoms of which the workplace should be aware, including physical reactions such as headache and nausea, mental reactions such as anxiety, nervousness or aggression and behavioural reactions such a inactivity, reduced efficiency and increased absence due to sickness.

PREVENTION AND HANDLING OF HARASSMENT

The employer is obligated to prevent the risk of physical and mental health deterioration due to harassment. First of all by ensuring that the management's position on harassment is clear, for instance by preparing policies concerning prevention and handling of harassment. Further, the employer must ensure that a written workplace assessment is prepared, including an assessment as to whether harassment appears at the workplace.

If it is established that harassment takes place at the workplace, it is important to discuss the specific measures to handle such behaviour and to prevent further harassment. Prior to taking any measures, an impartial investigation of the matters in question should be initiated - and cover all involved parties and any witnesses. In addition to the involved parties, the matter should be handled with discretion at the workplace.

The guidelines recommend that matters are solved based on a non-punishable approach, and actual sanctions should only be imposed in case of repetition or if the harassment is of an especially gross nature.

IMPORTANT THAT GUIDELINES ARE CLEAR

A general element in the guidelines is the importance of having clear guidelines at the workplace. This involves guidelines as to how the employees are to act in case of harassment or suspicion of harassment, including how the employees can seek advice or complain about harassment.

There should also be guidelines concerning conflict management, which should be carried out with full confidentiality. Companies should also consider making guidelines for rehabilitation of employees who have been subject to harassment and guidelines for sanctions in case of harassment.

contacts

Marianne Lage

Partner

Christian Vesterling

Assistant Attorney