In 2010, a female cosmetics trainee was hired at a dermatologist where she was trained to be a cosmetician. Shortly after the employment, the male manager responsible for education and training started to caress the trainee on her back and to make improper comments on her sex life.
A few months within the training period, the manager asked the trainee to perform as a test subject in connection with a hot stone massage session, which was carried out by the manager. During the session, the manager massaged the trainee on her buttocks and close to her crotch.
The female trainee felt that the massage was inappropriate, and shortly after the episode, she went on sick leave. Subsequently, the trainee decided to cancel her employment contract and to sue the employer claiming compensation for sexual harassment.
The employer rejected the claim as she did not think she was liable for the manager’s conduct.
The employer was responsible for sexual harassment
The Danish Western High Court ruled that the manager had violated the equal opportunities act by massaging the cosmetics trainee’s buttocks and by making improper comments. Among other things the High Court put emphasis on that the comments had a sexual nature and that the manager massaged the trainee close to her crotch two-three times during the session even though she was only wearing panties.
The Court also emphasised that the trainee shortly after went on sick leave due to the episodes.
The cosmetics trainee was awarded a compensation of 25,000 DKK, as the manager could not prove that he had not directly or indirectly discriminated the trainee according to the equal opportunities act.
The employer was held liable for the manager’s conduct and was forced to pay the compensation, as the manager’s conduct was not deemed to be abnormal. The High Court emphasised among other things that the female cosmetics trainee was instructed to perform as a test subject during the hot stone massage. According to the High Court, the employer should have foreseen the harassment by the male manager.
iuno's opinion
The employer has an obligation to ensure safe and healthy psychological and physical working conditions. This means that the employer is obliged to take action if an employee, for example, is exposed to sexual harassment in the workplace.
In the specific case, the employer was not aware of the sexual harassment, but was nonetheless held in violation of the equal opportunities act. At this point, the ruling is far-reaching. The equal opportunities act does not contain a formal requirement stating that the employer must know about the harassment in order to be held responsible under the equal opportunities act, but this is nonetheless an element which normally leads to an acquittal of the employer. It is still too early to assess if the judgement from the Danish Western High Court is expression of a general shift in the employer’s liability.
If an employee is reported sick due to the psychological and physical work environment, the employer risks long and expensive litigation. Therefore, iuno recommends employers work proactively with respect to the psychological work environment, e.g., by establishing internal guidelines that explain how to communicate properly in the workplace and what the consequences are for breaching the policy.
Furthermore, iuno recommends that companies consider establishing a whistleblower hotline where the employees can report problems with the psychological work environment. An efficient whistleblower system will have an external hotline option, which could be administered by an external lawyer.