Sexual harassment is conduct that is not accepted by the law, as it constitutes an infringement of the employee’s personality rights and gives rise to rights in favour of the harassed person, while it entails for the harasser civil, administrative and criminal sanctions.
Where it is the employer who harasses, the harassed person has a claim for full compensation, both for actual loss and lost profits, for material and moral damages caused by the harassment. Furthermore, when a person alleges that he or she is being subjected to treatment involving discrimination on grounds of sex (and therefore also sexual harassment) and invokes, before a court or other competent authority, facts or evidence from which direct or indirect discrimination on grounds of sex may be presumed, or that sexual or other harassment within the meaning of the law has occurred, the employer bears the burden of proving to the court or other competent authority that there was no breach of the principle of equal treatment between men and women and no harassment.
Forms of harassment include, among others, unnecessary touching of the employee’s body, unwanted sexual and improper advances or pressure for sexual acts, or repeated propositions within the workplace exploiting the victim’s employment position.
COURT JUDGMENT AWARDING PECUNIARY COMPENSATION FOR MORAL DAMAGES DUE TO SEXUAL HARASSMENT AT WORK
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In the present case (81/2023 Single-Member Court of Appeals of Piraeus), the plaintiff – now respondent in the appeal, set out in her aforementioned lawsuit dated 27-5-2019 (with Filing No. …………/2019), before the Single-Member Court of First Instance of Piraeus, that on 1st-11-2014 she was hired by the second defendant – now second appellant, a single-member private limited liability company (active in the conduct of international transports), under a part-time contract of dependent employment for an indefinite period, concluded through the first defendant – now first appellant, the sole partner, legal representative and manager of that company, to work as an office employee, for a monthly salary of EUR 500 plus social security contributions. . . . . That, furthermore, the first defendant, by the conduct described in detail in the lawsuit and exploiting their working relationship, repeatedly sexually harassed her at her workplace, thereby infringing her personality rights. That, in addition, the defendant infringed her personality rights by means of his extra-judicial declaration of protest dated 11-1-2019, in which he asserted the also-detailed-in-the-pleading defamatory facts about the plaintiff, while knowing them to be false, which came to the knowledge of third parties, with the aim of damaging her honour and reputation. That, by reason of the said culpable and unlawful conduct of the defendant, she (the plaintiff) suffered moral damage for the redress of which she is entitled to pecuniary compensation.
She subsequently requested, having admissibly limited the relief sought from an enforcement claim to a partly declaratory one (by oral declaration of her counsel before the bench of the first-instance court, recorded in the minutes bearing the same number as the contested judgment, and also through her first-instance brief), that it be declared that the defendants, jointly and severally, are obliged to pay her the sum of EUR 14,569.80 for social security contributions and the sum of EUR 15,000 as pecuniary compensation for moral damages, and further to be ordered to pay her an additional sum of EUR 15,000 as pecuniary compensation for moral damages, primarily on the basis of the provisions on tort, otherwise and entirely in the alternative on the basis of the provisions on unjust enrichment, as set out in detail in the lawsuit, all the above sums with statutory interest from the day following service of the lawsuit until full payment.
By its contested judgment (no. 2600/2021), the Single-Member Court of First Instance of Piraeus, sitting (following the aforementioned referral judgment no. 295/2011 of the same court) under the special procedure for proprietary (labour) disputes (Articles 614 para. 3 et seq. of the Code of Civil Procedure (KPolD)), held the lawsuit to be sufficiently specific and legally founded as to its main basis, save for the ancillary request for the imposition on the first defendant of personal detention as a means of enforcement of the judgment, which it dismissed as not legally founded, since, pursuant to Article 1047 para. 2 KPolD, personal detention is not ordered for a claim less than EUR 30,000 and in the present case the enforcement claim of the lawsuit amounts to EUR 15,000.
In addition, it dismissed as not legally founded the alternative basis of unjust enrichment, since this was sought to be supported by the same factual circumstances on which the main basis is also founded (Areios Pagos 16/2008, AP 1773/2007 NOMOS legal database, AP 222/2003 EllDni 2003.1261, AP 104/2003 EllDni 44.983). It then partly upheld the lawsuit as also founded on the merits (as to its main basis) and recognised the obligation of the second defendant company to pay the plaintiff the sum of EUR 5,537.20 as social security contributions, and ordered the defendants, jointly and severally, to pay the plaintiff the sum of EUR 6,000 as pecuniary compensation for moral damages, with statutory interest from the day following service of the lawsuit until full payment. Finally, it ordered the defendants to pay part of the plaintiff’s judicial costs, due to her partial success and in proportion to its extent, which it set at EUR 600.
The defendants – appellants now challenge the said final judgment by their present appeal, on the grounds set out therein, which relate to incorrect application of the law and erroneous assessment of the evidence, seeking its setting aside, alternatively its reformation, so that the lawsuit of their opposing party be dismissed in its entirety.
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The plaintiff was hired on 1st-11-2014 by the second defendant – now second appellant single-member private limited liability company, active in the conduct of international transports, under a part-time contract of dependent employment for an indefinite period, concluded through the first defendant – now first appellant, the sole partner, legal representative and manager of that company, to work as an office employee, for net monthly remuneration of EUR 500, plus social security contributions, as she herself clearly states in her unsworn deposition, as do her aforementioned witnesses on affidavit. The plaintiff is married with two children and at the time of her hiring, which was facilitated by her brother ……… and his friend ……….., as they knew the first defendant (see their affidavits referred to above), she had already been long-term unemployed and was in financial need to work. Her working hours were agreed at six hours daily (from 9 a.m. to 3 p.m.) on five days per week. Her duties were those of general secretarial support and more specifically the operation of a computer, handling of correspondence, taking orders and communicating with the company’s clients, issuing invoices etc.
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Furthermore, it emerged that, from October 2018 and while the previous month the plaintiff had raised the issue of her social-security registration more insistently than ever, having extracted from the defendant a promise that he would regularise it, nevertheless, not only did this not happen, but the defendant’s conduct began to exceed the limits justified within the framework of the working relationship and the familiarity arising therefrom, and to turn into sexual advances. More specifically, on the one hand he would leave digital discs containing pornographic material scattered on his desk (which were initially in the desk drawer), and on the other hand, during working hours, the defendant would watch these digital discs on his computer, wearing headphones so that the sound could not be heard, but turning the screen towards the plaintiff (since between their desks there was a glass partition), so as to force her to watch, despite her having told him, and having shown him by her conduct (changing position), that the spectacle annoyed her.
The deposition of the defendant’s witness, who states that the offices were separated by a wall that had a glass section and that from where the plaintiff’s desk was she could not see what the first defendant was watching on his computer, does not refute the above (as the defendants unfoundedly maintain in the second limb of the first ground of appeal), since it was precisely for this reason that the defendant turned his computer, namely so that the plaintiff would have visual contact with it. At the same time, the defendant proposed to the plaintiff that they meet outside work, a proposal which she refused, stressing that their relationship was strictly professional. Despite this, the defendant continued to provoke the plaintiff, sometimes even walking around half-naked from the waist up at the workplace, while on one occasion he had left his trousers on her desk. Moreover, (the defendant) at times sought to have physical contact with her, trying to embrace her, although the plaintiff avoided this and moved away, while on other occasions, while the plaintiff was working at her desk, he would come up behind her on the pretext of looking at something on her computer and pressed his genitals against her shoulder.
It should be noted that this last incident, deposed to by the plaintiff in her examination before the bench of the first-instance court, is also mentioned in the lawsuit, contrary to what is asserted in the third limb of the first ground of appeal. Also, in his affidavit no. …../2019, the plaintiff’s brother ………. states, among other things, that, as his sister had confided to him, the defendant ”… violated her personal space and tried to touch her”. The plaintiff’s manifestation of displeasure at the defendant’s said acts, which constitute sexual harassment against her person, and her refusal to yield to it, resulted in the defendant becoming hostile towards her.
The culmination of the said conduct of the (first) defendant, infringing the plaintiff’s personality rights, was the following incident: On 2 January 2019, when the plaintiff returned to work after the New Year’s holiday, on opening her personal company-email account, which she alone managed, she discovered that on 1st January 2019, from the personal account of his own company email, the defendant had sent her, by two emails a few minutes apart, sexually-explicit photographs of a naked woman, who was the defendant’s then partner ………… (now witness in counter-evidence), as the plaintiff later learned when this witness testified in favour of the defendant before the Labour Inspectorate. Subsequently, on the same day (2-1-2019), the defendant phoned the plaintiff to wish her a happy new year and began asking her in a way that aroused her curiosity whether everything was fine, whether she had the sense that it was a special day at work, told her to leave work earlier and that he would treat her very well if she was also nice to him. The plaintiff left the company’s offices in shock, returned the next day and sent the defendant an email by which she notified him of the termination of their cooperation, since due to the circumstances she could no longer continue to provide her services.
More specifically, as she states verbatim in her said email, addressing the defendant: ”… I have repeatedly received from you offensive conduct, which infringes my personality rights and has turned the office into a humiliating, intimidating, hostile and degrading environment for me. The culmination was the two emails sent to my personal work email with vulgar content, which caused me great distress, anxiety and fear. I need not say how greatly they offended my dignity as an employee and as a woman”. Finally, the plaintiff requested in the same email that the defendant pay her dismissal compensation, social security contributions, and (sought) also redress for her moral damages.
The fact that, as the plaintiff states in her lawsuit and as was accepted above, her sexual harassment by the defendant began in October 2018, while she had been working in his company since 2014, and also the fact that the words ”sexual harassment” are not expressly written in the said email, does not mean that there was no such harassment, as the defendant unfoundedly maintains in the fifth limb of the first ground of his appeal. Moreover, the plaintiff, in this email, refers to conduct infringing her personality rights, which created a humiliating, intimidating, hostile and degrading environment for her, and refers to the vulgar content of the said emails (with the nude photographs) which she received from the defendant and which offended her both as an employee and as a woman.
The defendant’s aforementioned acts constitute, as set out above, sexual harassment, as defined in the major premise, since they are forms of unwanted verbal and physical conduct of a sexual nature that had as their purpose and as their effect the infringement of the dignity of the plaintiff – employee. Such conduct on the part of the defendant is not accepted by the law, as it infringes her personality rights in the field of sexual life, by exploiting the said working relationship and his position as employer. The above facts, moreover, beyond the photographs produced and what the plaintiff stated in her unsworn deposition before the bench of the first-instance court, are corroborated by what her aforementioned witnesses confirm in their said affidavits, in whom the plaintiff had confided, being in a very poor psychological condition and seeking a solution.
Indeed, ……, as he himself states in his affidavit no. …………/2019, was the one who urged her to overcome her fear and to claim her legal rights. The defendant’s argument, repeated in the fourth limb of the first ground of the present appeal, namely that the said sexually-explicit photographs depicting his then partner ………… (witness in counter-evidence) were sent by him by mistake to the plaintiff’s company email, while he wanted to send them to his own company email (at the request of his said partner, so that they would no longer exist on his mobile phone, which was accessible to his son), is not found credible. This is because the plaintiff’s company email is ”………………”, whereas that of the defendant is ”…………”. Namely, they differ in several respects: in the defendant’s email, between the words ‘….. and ‘…. there is a full stop, and after the word ‘……. the letters ‘….. are added, and the domain is ‘…….., while in the plaintiff’s email the said words are continuous without a full stop, the letters ‘……. are absent and instead there is the number 2, and the domain is ‘………..
Beyond this, the defendant maintained, in addition to the said company email, also a personal email account, with address ………….., to which it would of course be more reasonable to send photographs of such personal content, if that was what he wished to do. The aforementioned witness may indeed know from her own perception that she urged the defendant to delete the photographs in question of her from his mobile phone, as she deposes, but cannot know whether or not he sent them by mistake to the email managed by the plaintiff. Moreover, what the defendants’ witnesses, business associates of the company, state in their said affidavits and more specifically that, during their visits to its offices, they did not perceive anything suggesting conduct of sexual harassment by the first defendant towards the plaintiff, and that she did not appear frightened or worried, cannot refute the facts established above, given that, in accordance with the lessons of common experience, on the one hand such conduct by the defendant would not take place in the presence of other persons, and on the other hand the plaintiff would not communicate it to third parties with whom she had a formal relationship within the framework of her employment with the second defendant company, in the interests of the first defendant.
It should however be noted that the deponent ………., a haulier, who cooperated with the company in question, states in his affidavit no. ………/2019 that the plaintiff complained to him that ”…sometimes ………. (i.e. the defendant) would get irritated by work and would shout at her too…”. By the first limb of the first ground of their appeal, the defendants complain that the first-instance court did not in substance take into account the deposition of their witness, nor the other evidence produced by them (affidavits and documents), while further, by the first limb of the second ground of appeal, they argue that the contested judgment erroneously relied, as regards its assessment, on the plaintiff’s testimony during her personal appearance before the first-instance court. However, the plaintiff was examined before the bench of the said court unsworn as a party (under Article 417 para. 1 KPolD, as expressly stated in the contested judgment) and this is not a matter of personal appearance for the purpose of providing clarifications under Article 415 KPolD, as the defendants unfoundedly contend. Apart from this, nothing indicates that the first-instance court reached its judicial conviction solely from what is stated in the said examination of the plaintiff.
On the contrary, it is expressly stated in the contested judgment that it took into account also the other evidence produced by the plaintiff and by the defendants. Which evidence the court will give greater weight to, in forming its judicial conviction, lies within its sovereign discretion. The present court, moreover, reassesses without exception all the evidence produced by the parties. It was also proved that the defendant and the said ……….., his then partner, sent the plaintiff the extra-judicial declaration of protest dated 11-1-2019, in which the defendant alleged the following false facts, knowing them to be untrue, on the basis of what is set out above, which came to the knowledge of third parties, namely the lawyer who drafted it, the bailiff and others (AP 688/2019, AP 987/2019, AP 1777/2017 NOMOS legal database) and which were offensive and harmful to the plaintiff’s honour and reputation, namely that: (a) her salary amounted to EUR 500 gross and that he had been asking her for her details to make a lawful declaration to IKA but the plaintiff refused, (b) that in December 2018 he set as a condition to the plaintiff for the continuation of their working relationship the declaration of her employment, while the plaintiff informed him that she did not wish her employment to be declared because she was unlawfully receiving benefits from OAED, (c) that the sending of the sexually-explicit emails was done by mistake and notwithstanding this the plaintiff, on this pretext, left her work, alleging improper conduct on the part of the defendant in order to claim sums not owed, (d) that the plaintiff’s conduct in claiming her legal rights conceals extortion on her part against him.
The first defendant, following the criminal complaint of the plaintiff with reference number ……., being tried in absentia, was found guilty of the act under Article 28 para. 1 of Law 3996/2011, by judgment no. 3229/2019 of the B’ Single-Member Misdemeanours Court of Piraeus, against which his appeal is pending hearing, while, further, the defendant filed a criminal complaint with reference number ….. against the plaintiff for the act of attempted extortion, which is also pending hearing at first instance. By the second limb of the second ground of their appeal, the defendants complain that the contested judgment wrongly dismissed their request for adjournment of the hearing of the present case, under Article 250 KPolD, until the issuance of a final and irrevocable judgment in the said criminal cases. This ground of appeal too, however, must be dismissed as unfounded, because the adjournment under Article 250 KPolD is discretionary for the court.
In the present case, the first-instance court, like the present court, considered the evidence produced sufficient to form a complete judicial conviction concerning the case at hand, without needing to adjourn the hearing until the final and irrevocable conclusion of the criminal proceedings. By the fourth limb, finally, of the second ground of the present appeal, the defendants argue that, since their assertions constitute a denial of the lawsuit and not an objection, the burden of proof for the sexual harassment of the plaintiff lies with her, and so the first-instance court erroneously held that the first defendant did not prove that no sexual harassment occurred, of which non-occurrence he bore the burden of proof. In the present case, however, which concerns a breach of the principle of equal treatment and more specifically sexual harassment, the general procedural rules on the burden of proof are derogated from, and a special rule of reversal of the burden of proof is established.
Specifically, as set out in the major premise, pursuant to Article 24 of Law 3896/2010 (which transposes Directive 2006/54/EC into the Greek legal order), when a person falling within the scope of the law invokes, before a court or other competent authority, facts or evidence from which direct or indirect discrimination on grounds of sex may be presumed, or that sexual or other harassment within the meaning of the law has occurred, the respondent bears the burden of proving to the court or other competent authority that there was no breach of the principle of equal treatment between men and women and no harassment (see also the findings in Report no. 25677/29412/2019 of the Greek Ombudsman regarding the present case). Therefore, the said ground of appeal must be dismissed as unfounded. In any event, the court holds that from the evidence produced by the plaintiff and referred to above, the foregoing facts, which constitute the sexual harassment against her by the first defendant, were proven.
From the above proven factual circumstances, the court is further led to the judgment that the plaintiff suffered moral damage from the aforementioned culpable, unlawful conduct of the first defendant – legal representative of the second defendant, infringing her personality rights, consisting on the one hand in the failure to register her with social security, despite her continuous reminders, with the result that (the plaintiff) was deprived of social security coverage and her years of work were not counted as pensionable, while at the same time exploiting the plaintiff’s need to work (AP 542/2018 NOMOS legal database), and on the other hand in the sexual harassment of the plaintiff and her defamation.
For the redress of this moral damage, taking into account the conditions under which the infringement was committed, its nature and its continuous commission, the poor psychological condition into which the plaintiff was placed as a result, and also the fact that she was forced to leave her work and the general distress and grief she suffered owing to the said incidents, as well as the degree of fault of the first defendant, who exploited the plaintiff’s employment position and exhibited hostile conduct as a reaction to the plaintiff’s actions for her protection, in conjunction with the socio-economic condition of the parties, the court holds, on the basis of the lessons of human experience and logic, that there must be awarded to the plaintiff, as pecuniary compensation, the sum of EUR 6,000.
This sum is deemed reasonable on the basis of the said factors taken into account and in accordance with the principle of proportionality (Article 25 of the Constitution), as that principle is specified by the provision of Article 932 of the Civil Code (AK), in line with what was held also by the first-instance court. As regards the amount of the pecuniary compensation awarded by the contested judgment, there is no specific ground of appeal. Moreover, in accordance with what was set out in the major premise, it follows from the provision of Article 71 first sentence AK that, in the case of a tort by the bodies representing the legal person, regardless of compensation for pecuniary loss, the legal person is also liable to pecuniary compensation for moral damages, on the basis of the said general provision of Article 932 AK (Plenary AP 8/2008, AP 542/2018 op. cit.), so that responsible for payment of the said sum, jointly and severally with the first defendant, is also the second defendant company.
In view of the above, the first-instance court, which by its contested judgment reached the same conclusion as the present court and partly upheld the present lawsuit as also founded on the merits, recognised that the second defendant company – second appellant owes to the plaintiff – respondent, with statutory interest from the day following service of the lawsuit until full payment, the total sum of EUR 5,537.20 as social security contributions due, and ordered the defendants – appellants, jointly and severally, to pay the plaintiff – respondent, with statutory interest as above, the sum of EUR 6,000 as pecuniary compensation for moral damages, as set out above, did not err and correctly applied the law and assessed the evidence. Consequently, the present appeal must be dismissed as unfounded on the merits. The judicial costs of the respondent for the second instance, following her relevant request, will be imposed on the appellants due to their loss (Articles 176, 183, 191 para. 2 KPolD), as specified in the operative part of the present judgment.
FOR THESE REASONS
Adjudicates, with both parties represented, on the appeal against final judgment no. 2600/2021 of the Single-Member Court of First Instance of Piraeus, issued under the special procedure for proprietary (labour) disputes.
Orders the return of the State filing fee (e-filing fee no. …………../2021, in the sum of EUR 100) to the appellants who lodged it.
Accepts the appeal as to its formal admissibility and
Dismisses it on the merits.
Imposes the judicial costs of the respondent for the second instance on the appellants, which it sets at the sum of seven hundred (700) euros.
JUDGED, decided and published in Piraeus, in its courtroom and in extraordinary public session on 2 February 2023, in the absence of the parties and their counsel.
THE JUDGE THE CLERK
- See also article Termination of Employment Contract
- See also article Dismissal Compensation
- See also article Modification of Employment Terms
- See also article Withholding of Labour
- See also article Annual Statutory Leave
- See also article Employee Remuneration
- See also article Overwork – Overtime
- See also article Employer Obligations
- See also article Job Rotation Employment
- See also article Unjustified Absence of Employee
FREQUENTLY ASKED QUESTIONS ON SEXUAL HARASSMENT AT WORK – MORAL DAMAGES
1. What is considered sexual harassment in the workplace?
Sexual harassment is any unwanted conduct of a sexual nature, verbal or physical, that infringes the employee’s dignity and creates an intimidating, humiliating or degrading environment. The most typical forms include unwanted touching, sexual advances exploiting the employment position, sending photographs or messages of sexual content, displaying pornographic material at the workplace, and pressure for sexual acts. Repetition is not required – even a single serious incident is sufficient. Liability arises whether the perpetrator is the employer or a colleague, and triggers civil, administrative and criminal sanctions.
2. What claims does the harassment victim have against the employer?
The employee who has suffered harassment may claim pecuniary compensation for moral damages on the basis of the provisions on infringement of personality rights and tort, as well as full compensation for any material loss (loss of income, costs of psychological support, etc.). The employee also has the right to unilaterally terminate the employment contract due to the employer’s fault, claiming dismissal compensation. When the harasser is the legal representative of the company, both he personally and the company are jointly and severally liable. In addition, a complaint may be lodged with the Labour Inspectorate and a criminal complaint with the Prosecutor’s Office of the Court of First Instance for the criminal offences of insult, infringement of sexual dignity or even rape, depending on the circumstances.
3. How is harassment proved when there are no eyewitnesses?
The law provides for a reversal of the burden of proof: when the employee invokes facts from which discrimination on grounds of sex or sexual harassment may be presumed, the employer bears the burden of proving that there was no breach of the principle of equal treatment. This significantly facilitates the victim’s position. As evidence are accepted emails, sms messages, viber messages, photographs, recordings, affidavits of persons in whom the victim had confided the events (relatives, friends), medical opinions on psychological consequences, and the unsworn deposition of the employee himself or herself as a party before the court.
4. Within what time must the employee take action?
The claim for pecuniary compensation for moral damages from a tort is subject to a five-year limitation period from the moment the victim became aware of the damage and of the person liable. For employment claims (wages, dismissal compensation, social security contributions) different, shorter time limits apply. On the criminal side, the formal complaint for offences prosecuted upon complaint must be lodged within three months from knowledge of the act and of the perpetrator. Because the time limits run in parallel and some are short, early contact with a lawyer – ideally immediately after the incidents – is critical, so that the evidence is secured before it is altered or lost.
5. What sum is awarded for moral damages in such cases?
The amount of pecuniary compensation is determined at the reasonable discretion of the court, on the basis of the nature and gravity of the infringement, its duration, the consequences for the mental health and social life of the victim, the financial and social condition of the parties, and the degree of fault of the perpetrator. In judgment 81/2023 of the Single-Member Court of Appeals of Piraeus, in a similar case the sum of EUR 6,000 was awarded for moral damages, while in other cases the sums usually range from EUR 5,000 to EUR 30,000. Statutory interest is calculated from the day following service of the lawsuit until full payment. In serious cases, personal detention may also be ordered against the perpetrator as a means of enforcement.
6. What is the role of the lawyer in a workplace harassment case?
The lawyer initially undertakes the collection and securing of evidence, so that it is not lost or contested later. He drafts an extra-judicial notice to the employer, lodges a complaint with the Labour Inspectorate, files the lawsuit for moral damages and material loss before the Single-Member Court of First Instance under the special procedure for labour disputes, and simultaneously lodges a criminal complaint with the Prosecutor’s Office of the Court of First Instance for the criminal offences. He represents the employee at all stages, takes affidavits, examines witnesses and addresses the assertions of the opposing side. The Law Firm ZIAMPARAS D. & ASSOCIATES has handled cases of workplace harassment and infringement of personality rights with consistently positive results for its clients.