We have been watching, since this summer, the intense debate and reactions against the labor bill – before it even saw the light of day. Its opponents are mainly focused on the issues of the management of working time, for which our older but also our very recent article. It is, of course, not the only important issue raised by law 4808/21 (Government Gazette A 101/21). Even more important, perhaps, is the (infamous – but not much-discussed) “reversal of the burden of proof” of violence and harassment. One does not need to have the gift of foresight to be certain that this particular provision will, unfortunately, prove to be problematic.
The (reasonable) prohibition of violence and harassment at work
Incidents of violence and harassment in the workplace are an old phenomenon and, unfortunately for all of us, more or less familiar. It is true that none of us could have imagined its magnitude — although as a society we did not underestimate it at all. All that until a completely recent investigation that took place on behalf of the Human Resources Management Liaison of Greece brought us before the reality.
Therefore, taking into account the magnitude of the problem, we are very pleased to read this piece of legislation.
“All forms of violence and harassment that occur during work, whether related to or arising from it, including violence and harassment due to a person’s sex and sexual harassment” are prohibited (Article 4 §1).
The reversal of the burden of proof
The (under this title) provision of Article 15 of the bill that is under consultation, provided:
“Where the person concerned refers to facts or evidence which give rise to an incident of violence or harassment in accordance with this Part, the defendant shall bear the burden of proving in court or before a competent administrative authority that such circumstances have not occurred. The preceding subparagraph shall not apply to criminal proceedings.”
The same provision (under the title “burden of proof” – this time) in the text submitted for a vote to the Parliament (and passed – Article 15) is as follows:
“When the affected person claims that there is violence and harassment in accordance with this Part, paragraph 1 of article 24 of law 3896/2010 (A ‘207) applies.”
This provision (Article 24. §1, Law 3896/2010) provides: “When a person falling within the scope of this law claims that they are subject to discrimination because of their sex, in accordance with the above provisions, and invokes, before a court or other competent authority, facts or evidence that give rise to an incident of direct or indirect discrimination because of their sex, or that sexual or other harassment within the meaning of this law has occurred, the defendant bears the burden of proving in court or to another competent authority that the principle of equal treatment between men and women has not been violated”.
Avoiding unnecessary, legal, analysis, taking a simple approach we conclude: Nothing, in essence, differs from the original form of the provision. The person accused of the incident of violence or harassment is the one who must prove that the specific incident did NOT take place. How fair / right / safe is this reversal of the burden of proof?
The legislator’s justification
In the Analysis of the Consequences of the Regulation we read the thoughts of the author of the specific provision on the specific subject:
“Article 15, in accordance with the non-discrimination legislation in force, hence the reference to it, provides for the immediate protection of those affected by the introduction of a procedural rule on the reversal of the burden of proof, when the person presents facts or evidence, from which the occurrence of an incident of violence or harassment under the above provisions is estimated as probable, with the result that the defendant bears the burden of proving in court or before a competent administrative authority that such circumstances did not occur. It is noted that an exception is introduced from the relevant rule for criminal proceedings, where the presumption of innocence applies”.
Is it right to align with anti-discrimination legislation?
The proof of a negative fact
It is well known that proof of a negative event is impossible (eg: “I did not speak badly to you”, “I did not hurt you”, “I did not steal your wallet”). Because of this, the one claiming the occurrence of an event must also prove it (: 338 Code of Civil Procedure).
The exception to the rule
An exception to the above-mentioned (under a) rule regarding the reversal of the burden of proof is found in Directive 54/2006 (article 19) and in law 3896/2010 (article 24) which transposed it. Also, in Directive 43/2000 (article 8) and in Law 4443/2016 (article 9) that transposed it.
However, it is important to emphasize that the specific Directives concern the treatment of discrimination (ie events that took place) and the (necessary) ensuring of the principle of equal treatment of employees.
In order to reverse the burden of proof, under these Directives and under the related legislation, it is required that the one alleging the violation of their provisions will have fully established the facts or, at least, provided evidence for the causal link of their less favorable, in relation to the protected (under these Directives), features (: grounds of distinction).
In other words: In these cases (under these Directives and legislation), the plaintiff’s facilitation concerns the unproven causal correlation of their ill-treatment with one of the suspected criteria of discrimination.
In particular: the case of sexual harassment
Sexual harassment is also considered gender discrimination. However, the reversal of the burden of proof does not mean that it is presumed that the sexual harassment actually took place.
On the contrary, there is a presumption of a causal link – that is, a link between sexual harassment (discrimination) and ill-treatment which has already been demonstrated by the plaintiff (employee), who also invoked its indications.
In this case, the defendant (employer) must prove the following negative fact: that the different treatment (event that took place) is not causally linked to any of the features protected by the Directives (: grounds of discrimination).
Therefore, the cases which the author of this regulation attempts to link are not relevant at all;
It is a given that our country is not bound by any Directive or International Convention for this reversal of the burden of proof, in relation to such incidents.
However, in the light of the above considerations, it is not legally correct, in the firm belief of the signatory, to relate the reversal of the burden of proof in the above Directives to the reversal of the burden of proof of Article 15.
The (reasonable) concerns
It is true that the provision in question raises reasonable concerns as the accused will be called upon to prove the absence of an “incident of violence or harassment” – in other words: a negative event. The risk of public humiliation and of a conviction, at any level, will be hanging above not only those who committed unjust actions, but also above those who did absolutely nothing of the sort.
With all the required (unlimited and absolutely necessary) respect for victims of violence or harassment, it is extremely dangerous to reverse the burden of proof introduced by the bill to be put to the vote. As long as this provision remains as is, it is a given that the one that will be most at risk is the truth: Any dissatisfied employee (or former employee) will be able to invoke an incident of violence or harassment in order to strengthen their place. In this case, the defendant (: colleague, boss, subordinate or employer) will be called to do the impossible: prove the non-existence of the reported event.
Which is illogical. And, of course, unfair.
However, a possible persistence on this provision (under the weight of political choices or, possibly, social pressure) will certainly make some people happy:
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (June 20, 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.