Should he stay or should he go

A paramedic at a hospital had been making comments about a trainee’s membership in Jehovah’s Witnesses. The trainee was 19 years old and the only female member of the employee’s team. The employee’s questions and comments grew increasingly sexual, and his colleagues notified the company.

Eventually, the trainee was invited to a meeting with the company about the employee. It became clear that the employee’s attention had also become physical. He would tickle, poke, wrestle, and carry her. He would also ask her opinion on sex before marriage, insinuate that God would not need to know if they had sex, invite her on trips, and invite her to his home.

Because of this, the company informed the employee that he would not work on the same shift as the trainee. Additionally, the employee could not work the shift right before or after the trainee’s shift. However, the company never followed up on this rule, and a few months later the employee was terminated due to sexual harassment.

Massive passive

The court concluded that the termination was invalid. This was because the company could have applied other measures before termination.

The trainee had never told the employee that his actions made her uncomfortable, but it was clear to everyone that they did. Although his actions were sexual harassment against the 17 year younger trainee, the company had been passive. Before terminating him, the company could have followed up on the assignment to other shifts. Alternatively, the company could have transferred the employee to several other sectors. Nothing in the employee’s history suggested he would not comply with such measures.

IUNO’s opinion

Companies are responsible for ensuring a safe working environment. This includes a responsibility to prevent sexual harassment and to react when sexual harassment occurs. You can read more about companies’ responsibilities regarding sexual harassment here. In sexual harassment cases, companies can be eager to protect the victim. However, this can sometimes be at the expense of proper case handling. Termination is a severe sanction, and companies must exhaust all other alternative measures before termination.

IUNO recommends that companies explore the possibility of measures such as relocation, assignment to other shifts, assignment to other teams, or remote work. Before an employee is terminated, it is also important to follow up on any applied measures.

[The Borgarting Court of Appeal’s judgement of 4 September 2023 in case LB-2023-52913]