18 Dec 2020 | Tania Tofaridou
The phenomenon of Sexual Harassment in the workplace, is treated under the Equal Treatment between Men and Women in Employment and Professional Education Law of 2002 (205(I)/2002) (hereinafter ‘The Law’).
According to article 2 of the Law, sexual harassment is any unwanted by the recipient behaviour of sexual nature, which is expressed verbally or physically, with the purpose or effect of infringing the dignity of the recipient, especially when creating an intimidating, hostile, humiliating or offensive environment in employment or professional education or training or in access to employment or professional education or training.
The Law applies to all employees, in respect of all activities related to employment, subject to exceptions as provided in article 4.
The law provides the option for a complaint on sexual harassment to be issued and served either under civil and/or criminal law proceedings. The competent court under civil law proceeding is the Industrial Disputes Court (“the Court”). Nonetheless, the jurisdiction of the Court is confined only to awarding equitable and reasonable damages covering incidental damages. The equivalent criminal Court has the jurisdiction to impose a fine up to four thousand euro and/or up to six months imprisonment.
The Courts of Cyprus examining the criteria of the offence of sexual harassment have clearly stated that the first criterion as to what extent the behaviour is unwanted, is subjective and what matters is how the behaviour has been perceived by the recipient. It is not relevant what the intention of the offender was. It must be underlined that, the expression of dissatisfaction by the recipient does not need to be explicit but should be presumed from the overall attitude of the recipient. To explain, there must be indications that the behaviour of the offender is unwanted by the recipient. Furthermore, tolerance of unwanted behaviour does not mean that the offence of sexual harassment cannot be established. Additionally, consent obtained by threats or under duress is not valid.
The second criterion is the nature of sexual behaviour. According to case law, an unwanted behaviour is considered sexual if it involves (a) a sexual element, tone or hint such as compliments, whistles, and flirting and (b) is expressed verbally or by physical conduct.
The third criterion is the creation of an intimidating, hostile, humiliating or offensive environment. If the victim has reasonably experienced the behaviour of the offender as insulting, hostile and humiliating then this would suffice as unacceptable sexual harassment.
Article 12(1) of the Law prohibits any form of sexual harassment by the employer or supervisor or colleague of the victim or any other employee. Additionally, a complaint filed by a victim of sexual harassment cannot be used as the basis to take any decision which will be adverse for the victim, e.g., termination of employment or unfair treatment or denying opportunities for promotion.
Therefore, the Law is explicit that employers are obliged to take effective measures for the protection of their employees from any act or omission which constitutes sexual harassment. An employer is liable for the offence of sexual harassment if he fails to take all necessary precautions to protect their employees. Furthermore, an employer is liable irrespective of whether he was aware that an offence occurred.
During civil court proceedings the burden of proof is transferred to the Respondent to disprove to the Court the allegations of the Applicant and prove that there was no violation of the Law. In criminal court proceedings the burden of proof rests on the prosecution on the legal standard of beyond reasonable doubt.
Currently, the litigation on sexual harassment is arguably passive. Nonetheless, it is important that cases are coming to surface, which could trigger more victims of sexual harassment to file a complaint in civil and/or criminal courts.