3 Nov 2015
A normal Monday morning at the office. Pekka is telling dirty jokes at the coffee table and his colleagues are laughing loudly. The only one not laughing is the new assistant Laura, who sits quietly to one side and does not seem to be enjoying Pekka's jokes.
Later on in the afternoon Laura knocks on her boss' door. She closes the door and wants to talk in private. Laura feels that Pekka's behaviour is inappropriate and his jokes offensive. What should the boss and the company do?
Harassment experiences are surprisingly common
According to the latest Working Life Barometer (Työolobarometri) published by the Finnish Ministry of Employment and the Economy, 37% of employees sometimes experience harassment or mental violence at their workplace. The phenomenon is surprisingly common, and even superiors experience their share of it.
“37% of employees sometimes experience harassment or mental violence at their workplace.”
The employer has an obligation to ensure a safe working environment and must therefore intervene in cases of bullying. According to the Occupational Safety and Health Act (738/2002), the employer, after becoming aware of the harassment or other inappropriate treatment of an employee causing hazards or risks to the employee's health, must by available means take measures for remedying this situation. Once the employer has received notification of the harassment or other inappropriate treatment, there must be action. From a practical point of view, it is important to have sufficient procedures in place to make sure all superiors know their obligations to take action.
Claims of inappropriate treatment are often presented in connection with litigation related to termination of employment. In Finland, it is also quite typical that the employer's passive approach leads to the employee presenting such allegations to the Regional State Administrative Agency which then initiates an investigation typically involving a number of questions and requests to the employer. Unsatisfactory answers and clarifications may lead to a criminal investigation, even regardless of whether the employee actually wants this.
What is harassment?
The Occupational Safety and Health Act (738/2002) does not define the terms "harassment" or "other inappropriate treatment". However, harassment is defined elsewhere in Finnish legislation. Harassment is defined by the new Non-discrimination Act (1325/2014), and the Act on Equality between Women and Men (609/1986) includes definitions on sexual harassment and gender-based harassment. However, it is not possible to create an exhaustive definition of harassment or other inappropriate treatment. The experience of harassment is always personal and it should not be disregarded even if it was not harassment or other inappropriate treatment.
“The experience of harassment is always personal and it should not be disregarded.”
Slight single actions are not normally considered as bullying. Neither are employer's measures and decisions which are based on the employer's right to supervise work. Elements of harassment or inappropriate treatment are, for example, underestimation, isolation, evasion, (non-verbal) inappropriate massages, discrimination, favouring, violation of reputation or status, criticism of personal characteristics and threatening behaviour. As outside counsels we have witnessed a broad spectrum of bullying allegations ranging from the superior giving non-ideal work tasks to claims of humiliating treatment by the superior.
Always look into the matter
In the event the employee has filed a request with the Regional State Administrative agency to investigate whether the employer has neglected its occupational safety obligations, it will be difficult to convince the investigating authorities if the employer can only say that there was no reason to investigate the matter since the employee had been overreacting.
In comparison, if the employer is able to provide the investigating authority with even a brief memorandum listing the employer's actions and the matters that led to the conclusion that the employee was not being harassed, the employer's position is significantly better. Most importantly, any further time-consuming investigations may be avoided altogether if the employer takes the concern seriously.
The initial investigation does not have to be in-depth. Even a simple form listing the actions performed as well as the conclusions, together with the reasons that led to those conclusions, will help in many cases.
Failure to comply with the employer's obligation to act
A failure to comply with the employer's obligations is a criminal offence and could lead to the representative of the employer being fined, or, in more extreme cases, even imprisonment. In addition, the employer could be sentenced to a corporate fine of EUR 850–850,000.
Once the representative of the employer becomes aware of harassment or other inappropriate treatment, he/she should:
begin to investigate immediately to discover what is going on
discuss with the parties separately and jointly
prohibit harassment and inappropriate treatment
follow up the fulfilment of the agreed solutions
remember to document the procedure in writing