The World Cup quarter finals are close at hand. We have been following the games with our own matchups, comparing labor and employment laws of participating countries.¹ Referees have borne the brunt of player ire over the course of the tournament, but what protections are available when hostility occurs in the workplace? Part Six of our series examines the protections available against harassment.

The Netherlands vs. Argentina (December 9)

The Netherlands

U.S. soccer fans were crushed when the Netherlands booted Team USA out of this year’s World Cup last Saturday. Dutch law against harassment in the workplace may be just as strong as its offense.

The Dutch discrimination legislation prohibits any form of harassment and sexual harassment. “Harassment” is defined as a form of discriminatory conduct related to a statutory ground (sex; age; race; disability or chronic illness; sexual orientation; marital/civil status; belief; religion; nationality; political orientation; and employment status (full-time/part-time or open-ended/fixed-term contract)) that has the purpose or effect of undermining the dignity of a person, and creating a threatening, hostile, degrading, humiliating, or offensive environment.

Harassment of employees is prohibited in the workplace or during the course of employment and is considered discrimination by the employer. Employers are obliged to prevent harassment among their employees.

“Sexual harassment” is defined as undesirable sexual approaches, requests for sexual favors or other verbal, nonverbal or physical behavior of a sexual nature that violates the individual’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive working environment, or treating individuals less favorably because they reject or submit to sexual conduct.

Argentina

Recent case law and doctrine have extended the scope of the employer’s duty of safety in Argentina to include not only the obligation to take all measures necessary to protect employees’ physical health, but also those related to their mental and physiological health. In view of this, the employer has the obligation to provide a healthy workplace free of hostilities.

For that reason, if moral or sexual harassment in the workplace harms an employee’s physiological health, a court may hold the employer liable for the damage, unless the employer proves compliance with the duty of safety.

Notwithstanding the above, prohibition against sexual harassment is statutorily regulated only in the public sector. Although a bill was introduced in the private sector seeking to punish violence and sexual harassment in the workplace, the period for it to be discussed in Parliament expired.

In addition, Law No. 27,580, published in the Official Gazette on December 15, 2020, approved the Violence and Harassment Convention, 2019 (No. 190) of the International Labour Organization (ILO). This convention came into force in June 2021.

England vs. France (December 10)

England

There are two statutory sources that protect against “harassment,” however the purpose of each statute and its definition of harassment differ (set out below). Today, most harassment-related claims tend to be brought under the Equality Act 2010 as opposed to under the older Protection from Harassment Act 1997. It is recommended that employers implement broad anti-discrimination policies and training (covering harassment and retaliation), which may help to establish a reasonable steps defense to a claim under the Equality Act 2010.

• Equality Act 2010: Aimed at ensuring equal opportunities in the employment field and a number of other areas (such as in the provision of goods, facilities and services etc.). The following forms of harassment are prohibited and recognized as a form of discrimination:
  
  • general harassment - where a person (A) harasses another (B) if A engages in unwanted conduct related to certain protected characteristics (sex, race, disability, religion or belief, sexual orientation, gender reassignment, or age), and such conduct has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B;
  • sexual harassment - where A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect as for “general harassment” above; and
  • rejection or submission to conduct of a sexual nature - where A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, the conduct has the purpose or effect as for “general harassment” above and because of B’s rejection of or submission to the conduct, A treats B less favorably.

There is no need to show numerous instances of harassment; one discrete action is enough.

• Protection from Harassment Act 1997: Harassment claims can also potentially be brought under the Protection from Harassment Act 1997 in an employment context, even though this Act was originally introduced primarily to combat stalking rather than addressing workplace problems. Due to the unpredictability of the law here, advice should always be sought if dealing with a claim under the Protection from Harassment Act 1997.

The Act creates both civil and criminal liability for harassment and provides no defense for the employer. Unlike under the Equality Act 2010 above, to establish a successful civil claim, a prospective claimant must show that there was a “course of conduct which amounts to harassment of another,” where the acts complained of took place “in the course of employment” and the harasser must “know or ought to know [that this] amounts to harassment.”A “course of conduct” means at least two instances of harassment in relation to the same person or at least one occasion of harassment in relation to two or more persons. In analyzing whether a person knew or ought to have known that their conduct amounted to harassment, courts will apply an objective test and consider whether a reasonable person in possession of the same information would think that conduct amounted to harassment.

The fundamental question of what types of actions would amount to harassment is not defined under the Protection from Harassment Act 1997, but case law has shown that it is a high bar for a claimant to reach. In the employment context, this could cover situations such as severe bullying together with physical or verbal abuse.

France

Harassment (i.e., sexual and moral) and retaliation are prohibited by the French Labor Code. In addition, employers have an obligation to prevent harassment.

Sexual harassment

Sexual harassment is prohibited by both the French Labor Code and the French Criminal Code, stating that no employee, trainee, or job applicant can be sanctioned, subject to a direct or indirect discriminatory measure, nor dismissed for having been subject or refusing to be subject to acts of sexual harassment.

Sexual harassment is defined as:

• repeated sexual or sexist remarks or behaviors that impair the dignity of an individual because of their degrading or humiliating nature, or that create an intimidating, hostile, or offensive situation for the individual; or
• any form of severe pressure, even if not repeated, with the real or apparent aim of obtaining an act of a sexual nature, to the benefit of the perpetrator or a third party.

Sexual harassment also exists when:

• an employee is victim of repeated sexual or sexist remarks or behaviors perpetrated by one or more persons, even if the remarks or behaviors were not repeated by the same person.
• an employee is victim of successively repeated remarks or behaviors of a sexual or sexist nature, perpetrated by several persons who know these words or behaviors are being repeated, even if the perpetrators were not engaged in a concerted effort.

Thus, the determining criteria of this offense are not only the nature of the conduct referred to, but also the lack of the victim’s consent, and the consequences of the conduct on the victim.

Any person within the company can be the harasser, whether or not there is a relationship of subordination between the harasser and the victim. Any employee engaging in or condoning the conduct defined above shall be liable to a twofold action, disciplinary and criminal.

The employer may be held liable in both criminal and civil actions.

As with discrimination, the same two-part, burden-shifting rule of evidence is applied. The burden is first on the employee to present a prima facie case of harassment. If such a case is presented, the burden shifts to the employer to prove that there is a legitimate nonharassment-based explanation.

Moral Harassment

Pursuant to Article L.1152-1 of the French Labor Code, moral harassment is defined as repeated conduct that damages the working conditions and infringes on the employee’s rights or dignity, alters their mental or physical health, or compromises their professional future.

The French courts have expanded the scope of moral harassment by recognizing that “bore out” – contrary to “burn out” – can constitute moral harassment. Bore out, according to the courts, can result from boredom when an employee is left without any work to perform, and such work condition can contribute to a depressive state.

Any person within the company can be the harasser (e.g., coworkers, subordinates, or managers).

The termination of any employment contract disregarding these rules is void.

Any employee engaging in or condoning the conduct defined above shall be liable to a twofold action, disciplinary and criminal.

Authors:

Argentina: Mercedes Balado Bevilacqua and Tatiana Diaz (MBB Balado Bevilacqua Abogados); France: Guillaume Desmoulin (Fromont Briens | Littler); Netherlands: Eric van Dam, Dennis Veldhuizen, and Wouter Engelsman (Clint | Littler); United Kingdom: Raoul Parekh, Richard Harvey, Chris Coombes, and Stephanie Compson (GQ | Littler)