Sexual harassment and compensation

Sexual harassment and compensation

"I read your article of 6 June about sexual harassment in the workplace. I would like to know what risks (e.g. dismissal) the victim is exposed to if she reports such behaviour to her employer and what compensation is available."

Fanny, Perly

Firstly, it should be remembered that employees are protected from sexual harassment by the general rules of the Code of Obligations (CO) and the more specific rules of the Law on Equality between Women and Men (LEg).

Employers who fail to take appropriate action in such circumstances are liable and may be ordered to pay compensation to the employee, irrespective of the damage suffered. In accordance with art. 5 of the Labour Law, this compensation is fixed taking into account all the circumstances of the case and may amount to up to six months' average Swiss salary. The question of whether this amount can be combined with the damages provided for under the provisions of the Code of Obligations in the event of a breach of the rules governing the employment contract remains a matter of debate in the legal literature and case law.

The employer may, however, be relieved of the obligation to pay such compensation if it proves that it has fulfilled its duty of care, by taking all the measures that experience dictates are appropriate to the circumstances and that can fairly be required of it to prevent or put an end to the sexual harassment.

In this respect, it should be emphasised that the employer may even be held liable in cases where the person concerned does not inform the employer directly of the sexual harassment of which he or she is a victim if, given the circumstances, the employer could not have been unaware of the offending behaviour.

It should be noted that the LEg deals only with the liability of the employer and not that of the perpetrator of sexual harassment, who may be required to compensate the victim for the loss suffered as a result of his unlawful conduct pursuant to art. 41 et seq. of the Swiss Code of Obligations, including, where applicable, compensation for non-material damage pursuant to art. 49 of the Swiss Code of Obligations.

Finally, you should know that a victim of sexual harassment who is dismissed as a result of the steps taken with the employer may ask for the dismissal to be annulled, provided that the matter is brought before a judge during the notice period.