How do you protect yourself from harassment?
This is how you can protect yourself from sexual harassment
Sexual harassment at work and in the company is not uncommon. In order to protect the employees, in practice it is usually the female employees, protection against sexual harassment in the workplace has been laid down in Section 3 (4) of the General Equal Treatment Act (AGG).
The law defines sexual harassment as any willful sexually determined behavior that violates the dignity of workers in the workplace. According to the law, this includes above all sexual acts and behaviors that are punishable under the criminal law, as well as sexual acts and requests for these and sexually specific physical contact, comments and the showing and visible attachment of pornographic representations that are recognizable by the person concerned being rejected.
So join in the conversation
As a works council, you have the right to co-determination in matters relating to the organization of the company (Section 87 (1) Works Constitution Act - BetrVG). You can therefore help determine the conditions under which your employer can or must punish sexual harassment in the company, for example when a warning can be issued or a company fine may be imposed. It is also your job as the works council to ensure that your employer takes suitable, including preventive, measures to protect you and your colleagues from sexual harassment (Section 80 (1) No. 1 BetrVG). You can make appropriate suggestions (Section 80 (1) No. 2 BetrVG).
In addition, as a works council, you are to be involved if an employee feels sexually harassed and makes use of his or her right to complain. In such a case you are required to form your own opinion. If you are of the opinion that the complaint is justified, you must immediately ask your employer to remedy the situation.
As a works council, if you learn of sexual harassment, it is best to get involved immediately. Regardless of whether or not there was an official complaint. Because once your employer has complaints according to § 13 AGG or you as a works council have to deal officially with a complaint according to § 85 BetrVG, an amicable settlement is difficult. Then sometimes it is only a matter of saving face for those affected.
In such cases, try to convene a clarifying discussion with everyone involved. If this does not happen or if a conversation does not end promisingly, advise the colleague concerned to have a lawyer check whether a lawsuit will improve the situation. Remind them of the 2-month period applicable to claims from the AGG.
These obligations apply to your employer
Protecting your colleagues from sexual harassment is primarily the responsibility of your employer. He is obliged to take the necessary measures to protect against disadvantage (Section 12 AGG). He must protect you and your colleagues from sexual harassment of any kind. He must also take preventive measures. This also means that the AGG is made known in the company. He must also point out to your colleagues which company office (usually the complaints office) they can complain to in the event of a case.
If the harassment actually occurs, your employer must immediately take appropriate measures to stop the harassment. However, sexual harassment in the workplace always constitutes a violation of the contractual obligation. What specific measures your employer must take depends on the type of harassment in question. Consider z. B. a warning or termination, but also an implementation or transfer. The selection of the respective labor law measure is based on the principle of proportionality. This makes it possible to take into account the severity of the sexual harassment and to ensure that the victim is adequately protected.
If your employer doesn't intervene
If your employer does not take suitable measures to prevent the complaint about sexual harassment, a harassed colleague can also stop her work (Section 14 AGG). Without your employer being allowed to cut your wages. However, this right to refuse performance only applies within very narrow limits. It only affects the immediate activity at the location of the immediate harassment. So it does not apply to the entire company. This regulation is problematic because of its lack of clarity. You should therefore recommend that your colleagues turn to you with a complaint under Sections 84, 85 of the BetrVG.
A harassed colleague can also demand that the discrimination be ended. If he fears further impairments, he can also sue the labor court for an omission of the disadvantage.
Special case: sexual harassment by third parties
This also happens again and again: a colleague is hired by an external person, e. B. a supplier, customer or guest of your company, harassed. In such a case, your employer is obliged to protect yourself in front of your colleague. He must do everything to stop the harassment. If necessary, he even has to break off the contractual relationship with the respective business partner.
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