Sexual Harassment in Paid Employment in the Europeau Union

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Sexual Harassment in Paid Employment in the Europeau Union

in Baltic Yearbook of International Law Online

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* Edited version of a paper `Sexual harassment in the European Union with special emphasis on case law in the Republic of Ireland and the United Kingdom' presented for LL.M in International Human Rights 2003 in National University of Ireland, Galway, Ireland. 1 Women now comprise an increasing share of the world's labour force - at least one third in all regions except in northern Africa and western Asia. The United Nations The YVorld's Women 2000: Trends and Statistics. There has been a steady increase in the number of women in waged labour in all member States of the EU from 29 per cent in 1970 to 51.2 per cent in 1998 (Data from CEC, 2000). Female employment rates in the EU reached 52.5 per cent in 1999 European Commission, 'Employment in Europe 2000' p. 9.

Universal Declaration of Human Rights 1948; International Covenant on Economic, Social and Cultural Rights, United Nations, General Assembly Resolution 2200A (XXI) entered into force on March 23, 1976; Convention on the Elimination of All Forms of Discrimination against Women, United Nations General Assembly Resolution 34/180, entered into force on 3 September 1981. 3 International Labour Organisation 1919, Article 427 of the Treaty of Versailles contained the first ILO Constitution with was revised in 1944. The ILO operates as a specialist agency of the UN and sets standards in international employment. The Declaration of Philadelphia 1944 which was incorporated into the ILO constitution makes specific references to employment rights as part of a human rights framework. According to a study by (ILO) in 1992, in the 23 countries surveyed, 15-30 per cent of working women had been subjected to sexual harassment, which varied from explicit demands for sexual intercourse to offensive remarks. 'Combating sexual harassment at work', in Conditions of Work Digest, Vol. 11, No. 1, 1992, ISBN 92-2-108257-1. 4 I986 EEC-European Parliament Directive to study the effect of sexual harassment. 1991 European Council of Ministers adopted a Code of Practice on Measures to Combat Sexual Harassment included in Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, Official Journal, 24 February 1992, L 049, pp. 1-8. 5 EU has a population of 380.8 million at present and with enlargement to 25 member States in 2004 will have a population of 454.9 million, Eurostat, Statistical office of the European Communities, < http://europa.eu.int/comm/eurostat/ > accessed on 2 May 2003.

6 GDP - per capita purchasing power, an economic performance measurement that indicates a person's disposable income: source Central Intelligence Agcncy World FactBook (2003). 71957 - Belgium, France, Germany (West), Luxembourg, Italy and the Netherlands signed the Treaty of Rome establishing the European Economic Treaty (EEC); 1973 - Denmark, Ireland and the United Kingdom join the EEC; 1981 - Greece becomes a member; 1986 - Spain and Portugal join the EEC; 1995 - Austria, Finland and Sweden. g May 2004 - Cyprus (only the Greek southern part of the island has joined), Czech Republic, Hungary, Poland, Estonia, Latvia, Lithuania, Malta, Slovenia, Slovakia and will bring membership up to 25 member States in the European Union. 2007 is the date set for Bulgaria and Romania to join the EU. Croatia, Turkey and Macedonia are applicant States but no date is set yet for their membership. 9 This came into effect in May 1999 and established new forms of co-operation in foreign and security policy.

10 C. Jones, Sexual Harassment, New York: Facts on File (1996), pp. 3-90. 11 A. Srinivasan 'Sexual Harassment' Indian Journal of Gender Studies 5(1). January-June 1998, pp. 115-125.

12 A study by Working Women magazine found that sexual harassment costs the typical Fortune 500 Company USD 6.7 million a year in increased absenteeism, employee turnover, low morale and low productivity, < http://www.rpcomsilt.com > accessed on 7 April 2003. Also U.S. Merit Systems Protection Board, studies of federal government workers estimate that sexual harassment cost the U.S. government USD 267 million in lost productivity and turnover. 13 The Equal Opportunities Commission is an independent, non-departmental public body, funded primarily by the government and provides advice and information for individuals and employers at , accessed on 15 April 2003.

14 Europa at < http://europa.eu.int/scadplus/leg/en/cha/cl0107.htm > accessed on 15 April 2003.

15 UK Strathclyde Regional Council v. Procelli (1986) Industrial Relations Law Reports (IRLR) 134; UK Stewart v. Cleveland Guest (Engineerin� Ltd. (1994) IRLR 440; UK Wileman v. Minilec Engineering Ltd ( 1998) IRLR 144. 16 EC Grimaldi v. Fonds des Maladies Professionelles, Case C-322/88, (1989) E.C.R. 4407, (1991) 2 C.M.L.R. 265.

17 Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Official Journal L 269,05/10/2002 P. 0015-0020. 18C. O'Brien, 'The Global Employer', at accessed on 12 April 2003.

19 Employment and Social Affairs Commissioner, the European Commission Representative in Ireland at accessed on 20 April 2003. 20 M. Rubenstein, `The dignity of women at work: a report on the problem of sexual harassment in the member States of the European communities', Luxembourg, European Community Information Service [distributor] 1988.

21 'Sexual Harassment at the workplace in the European Union', Luxembourg, Official Publications of the European Communities, Bernan Associates [distributor] 1999 p. 5. 22 Ibid., p. iii. 23 Ibid. 24 Ibid 25 Ibid., p. 15. 26 Ibid 27 Violence at work in the European Union, at< www.ilo.org>, accessed on 23 April 2003.

28 'Sexual harassment at the workplace in the European Union', Official Publications of the European Communities, Luxembourg, 1999, p. iv. 29 Ibid. 30 Ibid, p. 7. 31 Ibid, p. 21. 32 Ibid, p. 22.

33 Case No 14400321/02 Hampton v. CX Access Systems Ltd., 21 June 2002, EOR No. 114 February 2003 p. 32. 3a Wainwright Trust, 'Destructive conflict and bullying at work', February 2002. 3s See < www.wainwrighttrust.org.uk> accessed on 25 April 2003.

36 Sexual Harassment at the workplace in the European Union, Official Publications of the European Communities, Luxembourg, 1999 at p. 6. 37 Ibid., p. 230. 38 Ibid. 39 See accessed on 16 April 2003.

40 UK Strathclyde Regional Council v. Procelli (1986) IRLR 134 UK Stewart v. Cleveland Guest (Engineering) Ltd. (1994) IRLR 440. UK Wileman v. Minilec Engineering Ltd (1998) IRLR 144. UK Case No 14400321/02 Hampton v. CXAccess Systems Ltd., 21 June 2002. 41 UK Reed & Another v. Stedman (1999) in Thomson's Labour and Law Review p. 5. 42 See Garage Proprietor v. A Worker, Ireland: ECD 85/1; A Limited Company v. One female Employee EE 10/1998; Health Board v. BC and the Labour Court (1994) European Law Reports (ELR)27; A Female Employee v. A Company (2000) ELR 147.

a3 J. Gregory, 'Picking up the pieces: how organisations manage the aftermath of harassment complaints' , accessed 27 April 2003. 44The EU Code of Practice on Measures to Combat Sexual Harassment adopted in 1992 recognizes that 'a procedure to deal with complaints of sexual harassment should be regarded as only one component of a strategy to deal with the problem. The prime objective should be to change behaviour and attitudes, to seek to ensure the prevention of sexual harassment.' From EU Code of Practice on Measures to Combat Sexual Harassment included in Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, Officials Journal L 049, 1-8 (24 February 1992). 45 Ireland: 1998 Employment Equality Act gives a statutory basis for employer liability in Section 15. 'Anything done by a person in the course of his employment

is to be treated as if it was done by the employer, whether or not the employer knew or approved of the act. However the employer has a defence to vicarious liability under the 1998 Act if he can prove to the Court that he took such steps as were reasonably practicable to prevent the employee from doing the particular act, or from doing acts of that description in the general course of his employment. UK Bracebridge Engineering v. Darby (1990) IRIL 6, the employers' failure to investigate a claim of sexual harassment made the company liable. The Employment Appeal Tribunal found that the enquiry made into the allegation by the general manager were superficial as "according to the company's own disciplinary procedure, Miss Reynolds ought to have been aware that such an allegation of a serious incident of sexual harassment could have led to her suspending the two men involved and should in any event have led to a full investigation'. 46 Under Sweden's Equal Opportunities Act, 1991, Section 6, 'employers have a duty to prevent sexual harassment from occurring in the workplace'. In addition to giving employers a duty to prevent sexual harassment from occurring, Section 22 requires employers to investigate the incidence of sexual harassment in their workplaces. The French Labour Code (Code de Travail), Articles 122-134 and 230 requires employers to provide an employee handbook forbidding moral harassment. UK, Caniffe v. East Riding of Yorkshire Council (2000) IRLR 555. EAT decided that the proper approach lower tribunals should take when deciding on employer liability for sexual harassment was firstly, to identify whether any preventative steps had been taken by the employer and having done so, then consider what further steps the employer could have taken which were reasonably practicable. This deeision was made in a sexual harassment and assault case in which the lower tribunal held that 'by having disciplinary grievance and personal harassment policies in place, which had been drawn to the attention of all employees, the Council had discharged its liability as it had taken all practicable and reasonable steps possible to prevent sexual harassment happening at work.' The lower tribunal had not considered what further steps the Council could have taken. On the basis of this case, UK employers may be required to take other reasonable steps to prevent harassment in addition to establishing a grievance and harassment policy.

47 'The 'Kid Sister Test' for Sexual Harassment', Human Rights for Workers, Volume III, Bulletin No. 17, (21 September 1998) < http://www.senser.com/biii- 17.htm >, accessed on 28 April 2003.

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