Out of order but not outlawed!

I'm lucky enough to work for a young, dynamic company. At the end of the last afterwork organised by the company, an employee made inappropriate gestures or comments towards a trainee. The trainee has now accused him of sexually harassing her that evening. Our employer has been informed of the situation and is wondering what to do about these embarrassing accusations, which are spoiling the atmosphere, even though they occurred outside the strict context of work, but between colleagues...

R, Vaud

The situation you describe is not insignificant, because such behaviour can justify not only disciplinary action, but also dismissal, provided of course that certain minimum procedural guarantees are respected.

Article 328 of the Code of Obligations requires the employer to protect the personality of employees. This includes preventing and punishing sexual harassment in the workplace, including during related activities such as a company outing. When an employer becomes aware of inappropriate behaviour, it must conduct a serious and impartial investigation. However, the Federal Court points out that the procedural guarantees applicable in the context of a dismissal are not the same as in a criminal trial. Contrary to popular belief, the internal investigation does not have to comply with all the rules of criminal law, but it must be sufficiently rigorous and offer the person concerned a concrete opportunity to defend himself.

This is precisely what our High Court recently recalled when it ruled that a bank could dismiss a manager on the basis of serious suspicions of sexual harassment reported by several colleagues, provided that the internal investigation had been conducted in accordance with standards, without any major shortcomings. The investigation need not prove the facts beyond all reasonable doubt, but it must establish that continuing the employment relationship would be objectively unreasonable for the company. On the other hand, a mere unverified rumour or a biased hearing of the person concerned could render the dismissal unfair.

In your case, if the employer has reacted immediately to the accusations made by conducting a serious internal investigation - including interviewing the accused employee, giving him the opportunity to defend himself, gathering evidence and documenting the process - he may, depending on the results, consider terminating the contract, even if no criminal complaint has been made. However, care must be taken not to violate the rights of the employee concerned, in particular his right to be heard, failing which the employer could be ordered to pay him compensation for unfair dismissal!

In short, crossing certain boundaries with a colleague, even after an evening's work, can have serious professional consequences. However, the company's response must respect a minimum of procedural rigour. In this area, not everything can be based on instinct: neither that of the alleged harasser, nor that of the HR manager.