Failing To Prevent Sexual Harassment: Employer Liability In Denmark

• Published date: 11 May 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation
• Law Firm: lus Laboris
• Author: Mr Christian Clasen (Norrbom Vinding)

The Danish Eastern High Court has held an employer liable for not preventing and dealing with an employee's sexual harassment of another employee and for dismissing the victim when she reported the sexual harassment.

According to the Danish Equal Treatment Act, sexual harassment is contrary to the principle of equal treatment between men and women and constitutes discrimination on grounds of sex. Furthermore, an employee who is dismissed or subjected to other adverse treatment by the employer due to a complaint within the organisation (also known as victimisation) is entitled to compensation.

Background

The case concerned a female administrative assistant at a window cleaning business. As part of her job, she helped ensure that all employees provided proof, annually, that they had no criminal record in accordance with the employer's guidelines.

During her employment, the employee was subjected to sexual harassment by a co-worker, a window cleaner, on multiple occasions both verbally, physically and by text messages and phone calls.

The window cleaner was eventually dismissed for poor performance. During the proceedings, the employee stated that when she learned that the employer was considering dismissing the window cleaner, she informed the employer of the sexual harassment. Despite receiving this information, the employer waited a couple of weeks before dismissing the window cleaner.

After the dismissal, the employee found out that the window cleaner had recently been convicted of assault against a former partner and had been ordered to perform community service once a week. Instead of informing the employer about the situation, the window cleaner had called in sick on the days in question.

The employee reported this to the employer, and she was dismissed shortly thereafter. According to her statement, at this time she also elaborated on the extent of the sexual harassment. The window cleaner was later convicted of several counts of sexual assault against the employee at her home.

Dismissed for failing to 'say no'

The employee's trade union issued proceedings, claiming that the employee was entitled to compensation, partly because of the sexual harassment, which the employer had not prevented, and partly because the employer had dismissed her unfairly when she filed a complaint about the sexual harassment. The union stressed the fact that the employee was dismissed the day after she described the extent of the sexual harassment to the employer.

The...