Policies for violence and harassment at work (Content, deadlines and threatened sanctions)
It would not be an exaggeration to say that the recent labor law (Law 4808/21, Government Gazette A 101 / 19.6.21), in essence, it “rewrites” labor law. It has already proven to be of major importance and seriousness to employees, businesses and the economy. We are therefore concerned with a number of our articles. The issues it deals with are many and very important. Of particular importance, among them, is its Part II which refers to the measures taken and the regulations adopted to prevent and manage acts of violence and harassment in the workplace. An important obligation, among other things, that arises for Businesses is the establishment (and implementation) of Policies: to combat violence and harassment but also to manage internal complaints. But what is their content? How will businesses align with this obligation? How will they manage the expiration, without their fault, of the deadline provided by the law but also the threatened-very serious, relevant, sanctions?
Policies to combat violence and harassment
The new law (mentioned in the introduction) introduces, for the first time (art. 9), the existence and implementation of Policies to combat violence and harassment.
It should be noted that their introduction that implementation should take place, according to the law, by 19.9.21.
The existence of these Policies is identified as mandatory for businesses with more than twenty employees. They must include the employer’s declaration of zero tolerance for violence and harassment. Also, the rights and obligations (of both employees and the employer) to prevent and deal with such incidents or behaviors.
They also include (at least – among other things, according to the explicit, but absolutely general, wording of art. 9 §2): assessment of the relevant risks at work, measures for the prevention, control, limitation, treatment & monitoring of such incidents or behaviors and risks, actions taken for the information and awareness of the staff, appointment of a liaison person, ie person responsible for guiding and informing employees on such issues, care for the protection of employment and support for employees-victims of domestic violence.
Policies for managing internal complaints
Along with the existence of policies to combat violence and harassment, the Policies for the management of related internal complaints are also mandatory (art. 10). These policies, too, regard businesses with more than twenty employees.
These Policies concern the management as well as the process of receiving and examining the specific complaints (with respect for the protection of the victim and human dignity).
They include (at least according to the explicit, also absolutely general, wording of art. 10 §2) secure and easily accessible communication channels for the reception of complaints, identification of the persons responsible for their receipt, their examination and management. They are obliged to investigate complaints with impartiality and protection of the confidentiality and personal data of victims and complainants. They institute the (absolutely necessary) prohibition of retaliation and further victimization of the affected person and the cooperation with the competent authorities. They determine the consequences in case of violations.
Policies: Procedure and conditions for their implementation
Policies for the prohibition of violence and harassment (art. 9) as well as those for the management of internal complaints (art. 10) should be the subject of collective bargaining (as content of the General National Collective Employment Convention or the Rules of Procedure – art. 11). However, in the absence of trade unions and employees’ councils, the relevant Policies are drawn up by the employer after informing the employees and posting the relevant policy plan or its notification in the workplace, in order to receive the employees’ views.
When there is a Rules of Procedure (or the obligation to draft one), its content must include provisions for disciplinary offenses, disciplinary proceedings and disciplinary penalties in the context of or following complaints of incidents of violence and harassment.
The (long-awaited) Ministerial Order
The wording adopted by the Law on the Content of Policies [: (a) on combating violence and harassment and (b) on the management of related internal complaints] is completely general and, therefore, problematic. In other words, it would be impossible to draft, serious in terms of their content, texts that would fulfill the current liability of employers and businesses under the law.
A specific authorizing provision (art. 22 §1), on the basis of which: “By decision of the Minister of Labor and Social Affairs, policy templates are issued to combat violence and harassment and to manage internal complaints under Articles 9 and 10 with the minimum content set by law, as well as relevant instructions to the obligors”, seems to provide a solution.
The deadline for the implementation of the Policies
According to the transitional provision of art. 23 §1: “the obligation of the employer is fulfilled with the entry into force of the specific policies by their own decision taken within three (3) months from the entry into force hereof, after consultation with employees or their representatives, in accordance with what is defined in par. 1 of article 11”.
The entry into force of this law took place with its publication (: 11.6.2021). Therefore, the deadline for implementation of the above Policies expired, as mentioned above, on 19.9.21.
But how could it be possible to draft the Policies and implement them in time (after following the above-mentioned consultation procedure) without the issuance of the (long-awaited) Ministerial Order?
The issuance of the (long-awaited) Ministerial Order
After a long waiting period, the (long-awaited) Ministerial Order was issued!
We expected it to contain (according to the legislation – art. 22 §1) “policy templates for the fight against violence and harassment and for the management of internal complaints” (as the signatory had requested in a dialogue with the Social Partners) .
We were disappointed, however, finding that in place of the critical (and legally necessary) elements of the Templates there were… ellipsis (…) (!). The “instructions” for completing them contained, for the most part, theoretical directions.
One of the topics that concerns, in particular, businesses, HR managers, legal advisors of businesses and professionals who deal with these issues, is the section on the assessment of the risks of violence and harassment at work. Specifically, however, with regard to this section, the above MO (art. 3 §1.a) states: “The policy identifies the risks associated with violence and harassment, taking into account, inter alia, any inherent danger arising from the nature of the activity, the job, factors such as gender and age or other characteristics which constitute grounds for discrimination…”.
It is, indeed, impressive: Does the political leadership of the Ministry and / or the auditing bodies of the Labor Inspectorate expect that the existence of a (professional) risk of violence and harassment within its a business is to be accepted by any business?
And even more so:
We expected that the (long-awaited) MO:
(a) would be issued in time for the businesses to comply, as they are already, from 19.9.21, overdue,
(b) would provide some sort of a “grace period” or extension to the already existing deadline for compliance (in the sense, for example, of notifying the commencement of the relevant audits three months after its publication – although more correctly legislative extension would be required, and why not),
(c) would provide useful templates to businesses; the businesses would not have to improvise or be burdened financially in order to hire the right consultants; it would not result in the threat of businesses with extremely onerous sanctions -without even their own responsibility.
We have been rebutted!
The threatened sanctions from the (untimely) drafting of the Policies
As businesses are, without exception, overdue due to their non-timely compliance with the drafting and implementation of the above Policies, it is obvious that sanctions against them are already threatened. The provisions of a. 24 Law 3996/2011 and of a. 71, 72 §1 Law 3850/2010 specify said sanctions, as follows:
(a) administrative sanctions (: fine from € 300 to € 50,000 and / or temporary cessation of the operation of a specific production process or of part or parts or of the whole enterprise or holding for a period of up to six days) and
(b) similar penalties (: imprisonment of at least six months or a fine of at least € 900 and / or both of these penalties).
It is obvious that the implementation of important legislation should be imposed by the State (also) with the threat of severe sanctions for violators.
In this case, however, without the responsibility of the businesses, (already) delinquent behavior is identified on their part (: non-drafting and implementation of the above Policies) with very severe sanctions being threatened against them. The signatory, in the context of the dialogue of the Social Partners with the Ministry of Labor, had proposed a three-month transitional period (which, moreover, the law also provided under the responsibility of the competent Ministry was unnecessarily spent) – but: ” voices crying out in the desert “…
It is obvious that the political leadership of the Ministry of Labor should take the appropriate decisions and provide the obligated businesses with the absolutely necessary (and morally necessary) extension of the deadline for compliance.
Immediately.-
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (October 31st, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.