Harassment is a violation of personal integrity that can take various forms, including psychological harassment (also known as mobbing) and sexual harassment. According to consistent case law from the Swiss Federal Court, psychological harassment is defined as "a sequence of hostile remarks and/or actions, repeated frequently over a considerable period, by which one or more individuals seek to isolate, marginalize, or even exclude a person from their workplace." Sexual harassment, on the other hand, is characterized by unwelcome behavior of a sexual nature or based on a person’s sex, which undermines their dignity at work (Art. 4 of the Federal Act on Gender Equality, LEg).
Employer’s Legal Obligations:
Under Art. 328 para. 1 of the Swiss Code of Obligations (CO), the employer has a legal obligation to protect the worker's personality, including protection against acts of harassment. Additionally, Art. 328 para. 2 CO and Art. 6 para. 1 of the Federal Act on Labour in Industry, Trade, and Commerce (LTr) mandate the employer to take all necessary and reasonable measures to protect the health of employees. This obligation encompasses both refraining from harming the employee’s health and protecting them from harassment by superiors or colleagues. If the employer fails to act against harassment, they may be held liable, even if they are not the perpetrator.
Preventive Measures:
To prevent workplace harassment, employers should:
Establish an Internal Policy:
Draft a policy statement explicitly prohibiting harassment and detailing unacceptable behaviors.
Specify sanctions and procedures for addressing harassment within the company.
Appoint a Trusted Person:
Designate a trusted individual to whom victims or witnesses can report harassment.
Raise Awareness:
Regularly educate employees about harassment to create a healthy work environment and encourage open communication on these issues.
Reactive Measures:
When faced with suspected or actual harassment, employers must:
Clarify the Situation:
Quickly verify the victim’s claims without waiting for the results of a legal action or internal investigation.
Stop and Sanction Harassment:
Appropriately address clear violations of the employee’s personal integrity. Depending on the circumstances, this may involve issuing warnings, reassignments, or dismissals.
Consequences for Non-Compliance:
If an employer does not meet their obligations (Art. 328 CO), the victim may seek compensation. The type of harassment determines the specific compensation:
Psychological Harassment:
If an employee is dismissed following mobbing, the dismissal can be deemed abusive under Art. 336 CO. The employer may be required to pay an indemnity up to six months’ salary (Art. 336a CO). Additionally, the victim can claim damages for moral harm (Art. 49 CO).
Sexual Harassment:
Under the LEg, the victim is entitled to compensation up to six months’ median salary (Art. 5 para. 3 LEg).
Criminal Complaints:
Victims can also file a criminal complaint against the perpetrator of harassment.
For more information or assistance in dealing with harassment cases, please contact the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch). We can support you in your efforts.
Author: Caroline Bachelard
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