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National Labour Tribunal Decides Employers Must Revise Workplace Sexual Harassment Policies and Training to Reflect Stricter Definition of Harassment

24 Jan 2023 Labour and Employment

Under the Law for Prevention of Sexual Harassment 1998, unwanted recurrent gesturing of a sexual nature or recurrent remarks which focus on sexuality is sexual harassment.

 In the context of workplace relations, there is a presumption of that sexual harassment occurred even if the complainant did not indicate that the approaches are unwanted if there is a “relationship of dependency” between the harasser and the complainant. In the case of sexual harassment between employees of the same status, the complainant must show that the gestures were unwanted.

On 13 December 2022, the National Labour Tribunal, which is the highest court in labour matters, handed down a judgment (35999-10-21) ruled for the first time that relationships of dependency also include situations where the harasser can exert an influence on the harassed person’s employment situation which results in an imbalance of power other than through formal subordination or dependability.

The tribunal found that an imbalance of power might emanate from the professional status of the harasser, from the length of his or her employment, from his or her social status in the workplace, from his or her connection to management or other employees, or the age difference between the parties.

In this case, the complainant was a newly employed waitress and the complainee was a relatively senior chef who has been working at the hotel for a year and a half. He was also ten years her senior. Therefore, the National Labour Tribunal determined that the status of the parties was unequal, and the complainant was not free to reject the complainee’s approaches without fearing for her job.

The National Tribunal also found that an employer’s efforts to prevent workplace sexual harassment must be active, earnest and sincere.

 Among other things, employers are now expected to:

  • Amend the statutory policy and notice for the prevention of sexual harassment, to refer also to the ability to exert of influence a relationship of dependency;
  • Regularly train employees on the prevention of sexual harassment;
  • Take account of new employees’ status when they receive prevention of sexual harassment training;

The tribunal also set the bar higher for the required procedures when investigating sexual harassment complaints. Employers must:

  • Thoroughly examine complaints;
  • Record fully and accurately the investigative procedure;  
  • Take testimonies from all relevant persons and examine all the relevant information;
  • Document all conversations and testimonies, noting the dates testimonies were given;
  • Ensure the final conclusions and recommendations accord with contents of the investigative records;
  • Reach a written, actionable, reasoned decision without delay.  

 The firm’s Labour Law Department offers an array of compliance services, including preparing policies of prevention of sexual harassment, training, drafting opinions, conducting investigations, and more.

 Please contact us for any enquiries. 

 The stated in this document is general information only and does not constitute a legal opinion or legal advice and should not be used in any other way.