Company was responsible for site manager’s sexual harassment

After an employee resigned, she informed the car company she had worked for that both she and other colleagues had been sexually harassed by their site manager.

In response to her report, the company initiated an investigation. In addition, the Swedish Equality Ombudsman also initiated a supervisory investigation to determine if the company had acted in accordance with the Swedish Discrimination Act.

Liable although the duty to investigate was satisfied

Pursuant to the Swedish Discrimination Act, sexual harassment in connection with work is prohibited. In this context, companies are subject to a number of requirements in the event of a case of sexual harassment. Among other things, the rules determine:

• That sexual harassment is defined as "behaviour of a sexual nature that violates someone’s dignity"
• That a company must not discriminate against an employee, which includes an obligation to protect employees against sexual harassment
• That companies must initiate an investigation if an employee has experienced sexual harassment and initiate measures to prevent sexual harassment going forward

In this case, the company launched an investigation after becoming aware of the site manager’s behaviour. The investigation confirmed that sexual harassment had taken place, as the employee had reported. In light of the company’s own conclusions of the investigation, the company introduced several preventive measures. These measures included a consultation on reassignment of the site manager, which resulted in an agreement to terminate his employment.

Following a separate supervisory investigation, the Swedish Equality Ombudsman found that the company had satisfied its duty to investigate under the Swedish Discrimination Act. The reasoning was that the company had promptly launched an investigation after getting the report of the suspected sexual harassment. The Swedish Equality Ombudsman also found that the company had carried out preventive measures in accordance with the rules of the Swedish Discrimination Act.

Regardless of the company having satisfied these duties, the Swedish Equality Ombudsman found that the company had violated the Swedish Discrimination Act. This conclusion was based on the fact that the company was responsible for the sexual harassment which had been committed by an employee with a managerial position. The employee in a managerial position was, in other words, considered to have been acting on behalf of the company. Through the site manager's actions, the company had breached the prohibition of discrimination.

IUNO’s opinion

The Swedish Equality Ombudsman's supervisory decision shows just how important it is to create a culture that clearly prohibits and prevents discrimination, especially with respect to employees in a managerial position. Such a culture can be achieved, among other things, through active measures, as well as by establishing guidelines and routines against, for example, sexual harassment. This should be done in accordance with the requirements of the Swedish Discrimination Act.

IUNO recommends that companies take active steps to establish clear guidelines and routines that are regularly reviewed by the company and informed to its employees, in order to prevent discrimination in the workplace to the greatest extent possible.

[Decision of the Swedish Discrimination Ombudsman, no. TIL 2020/24]