The legal framework on harassment and mobbing in workplaces in Greece

1 The general Criminal Code provisions

The Criminal Code describes, in article 337 par. 4, sexual harassment in the workplace as an offense, which stipulates that: “Whoever makes sexual gestures or makes proposals for sexual intercourse to a person who depends on him for work or takes advantage of the position of a person who is in the job search process, may be punished with imprisonment of up to three (3) years“. The offense, in this case, is of a misdemeanor nature, with a range of predicted prison sentence of ten (10) days up to three (3) years.

2. The implementation of the Directive 2006/54/EC

Law 3896/2010 inserted in the Greek legal order the Directive 2006/54/EC of the European Parliament and of the Council regarding the application of the principle of equal opportunities and equal treatment of men and women in matters of work and employment. Article 2 par. c’ and d’ of the Law 3896/2010 defines the concept of harassment and sexual harassment as follows: “harassment”, where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment and “sexual harassment”: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment. At the same time, Article 3 provides for the prohibition of all forms of direct or indirect sex discrimination and constitutes gender discrimination and harassment, sexual harassment, as well as any less favorable treatment of a person associated with gender reassignment or pregnancy and motherhood.

The person affected by such behavior, according to article 23 of Law 3896/2010, may file a claim for compensation before the civil courts and in parallel, he has the right to file a lawsuit before the criminal courts. Also, according to article 24 of Law 3896/2010, the burden of proof in the case of reporting abusive behavior in the workplace lies with the defendant, ie the perpetrator, except in criminal proceedings, where the principle of the presumption of innocence of the accused prevails. The implementation of the principle of equal opportunities and equal treatment of men and women in matters of work and employment is supervised, also, by the Ombudsman, in accordance with article 25 of Law 3896/2010, who may handle complaints from citizens on these cases, even if they are pending before courts, tribunals or prosecuting authorities, but until the first hearing of the case or until the competent court or competent judicial authority has ruled a temporary judicial protection.

3.  The provisions of the Law 4443/2016

Law 4443/2016 inserted in the Greek legal order i) the Directive 2000/43/EC on the application of the principle of equal treatment of persons regardless of racial or ethnic origin, ii) the Directive 2000/78/EC on the formation of a general framework for equal treatment in employment and occupation and iii) the Directive 2014/54/EU on measures to facilitate the exercise of workers’ rights in the context of free movement of workers. The purpose of this Law was to combat discrimination based on race, color, national or ethnic origin, religious or other beliefs, disability or chronic illness, age, marital or social status, sexual orientation, identity or gender characteristics, as well as to promote treatment.

Article 2 of Law 4443/2016 defines, among others, the concepts of direct and indirect discrimination, discrimination based on relationship, discrimination due to supposed characteristics, multiple discrimination, but also harassment. Harassment, within the meaning of this Law, is defined as discrimination based on race, color, national or ethnic origin, religious or other beliefs, disability or chronic illness, age, marital or social status, sexual orientation, identity or gender characteristics, by unwanted conduct with the intention or effect of insulting the dignity of the person and creating a threatening, hostile, humiliating, humiliating or aggressive environment.

According to article 11 par. 2 of Law 4443/2016 “The discriminatory treatment in violation of the provisions of this Part due to race, color, national or ethnic origin, genealogical background, religious or other beliefs, disability or chronic illness, age, marital or social status, sexual orientation, identity or gender, by a person acting as an employer at any stage of the access to work and employment, when entering into or refusing to enter into an employment relationship or during its operation, development or termination, constitute breach of the labor legislation for which the administrative sanctions of article 24 of L. 3996/2011 (Α 170) are imposed by the Labor Inspection Body (SEPE)“. Consequently, the violation of the provisions of Law 4443/2016 entails administrative sanctions which are dealt with by the Labor Inspection Body (SEPE), while there is always the possibility for the victim to seek judicial protection, civil or criminal. The burden of proof in case of complaint bears – as according to Law 4443/2016 – the defendant, except for the criminal courts where the principle of the presumption of innocence of the accused prevails. From the combination of the provisions of articles 8 and 10 of Law 4443/2016, it results that any dismissal that manifests itself as a countermeasure to the complaint gives right to the victim to submit a report or administrative appeal under the terms of articles 24 to 27 of the Code of Administrative Procedure. Finally, according to the provisions of article 14 of Law 4443/2016, the Ombudsman is appointed as the body for the supervision and monitoring of the application of the principle of equal treatment.

4. The recent Law 4808/2021

Law 4808/2021 ratified in our country Convention 190 of the International Labor Organization for the Elimination of Violence and Harassment in the Workplace, which was adopted by the Conference of the International Labor Organization in Geneva, on 21- 06-2019. This Law specified the legal framework regarding harassment in the workplace, specified the sanctions and the process of their imposition by the Labor Inspection Body (SEPE) and more clearly provided for the rights of the affected persons.

According to article 4 par. 2 of Law 4808/2021: “a) “violence and harassment” means behaviors, acts, practices or threats thereof which are, are intended to be, or are likely to result in physical, psychological, sexual or financial harm, whether occurring individually or repeatedly, b) “harassment” means any form of conduct which has the intention or results to the violation of the dignity of a person and the creation of an intimidating, hostile, degrading, humiliating or offensive environment, irrespective of if they constitute a form of discrimination, including sexual harassment or other grounds of discrimination; c) “sexual harassment” means the sexually explicit conduct of a person which has the intention or results to the violation of that person’s dignity and the creation of an intimidating, hostile, humiliating, humiliating or aggressive environment under the article 2 of Law 3896/2010 (A ‘107) and par. 2 of article 2 of Law 4443/2016 (A’ 232) [see above]. These forms of behavior include the sexual harassment of Law 3896/2010, as well as forms of behavior related to sexual orientation, expression, identity or gender characteristics of the person“, while according to par. 3 “For the purposes of the application of this article, forms of violence and harassment against the persons referred to in Article 3 may take place in particular: a) in the workplace, including public and private areas and areas where the employee provides work, receives payment, takes a break in particular, for rest or food, in personal hygiene and care areas, locker rooms or accommodation provided by the employer, b) travel to and from work, other transportation, travelling, training, and work-related social activities and c) work-related communications, including those carried out through information and communication technologies”.

At the same time, articles 9 to 11 of Law 4808/2021 provide for the obligation of companies employing more than twenty (20) employees to adopt policies to prevent and combat violence and harassment at work, taking a series of measures that includes at least: a) information actions to prevent, control, limit and deal with these phenomena, b) to monitor such behaviors, c) to inform employees of their rights and obligations in the event of such occurrence d) the appointment of a company-level reference person to be responsible for guiding and informing employees on the prevention and response to violence and harassment, e) the supporting of the employees – victims of domestic violence, f) the treatment of violence and harassment complaints by designating persons, easily accessible to employees, who will receive and examine complaints impartially and in full respect of the principle of confidentiality and protection of the personal data of victims and complainants, g) the prohibition of retaliation against the affected person and h) a clear description of the consequences and sanctions that will result from the finding of such behavior within the company. The above policies should be the result of the employer consulting with the representatives of the employees or collective bargaining under the Collective Bargaining Agreement or a Labor Regulation within the company. Especially, in the case of a Labor Regulation within the company, the provision of disciplinary misconduct, procedures and penalties regarding allegations of violence and harassment are mandatory.

Article 12 of Law 4808/2021 provides for the rights of the affected persons, who may seek recourse to the Labor Inspection Body (SEPE), but also to the Ombudsman, who is also under this Law a body of supervision and promotion of the principle of equal treatment. In parallel, any affected persons maintain their rights and claims before the competent civil and criminal courts. The employer, in case he receives a relevant complaint from an employee, is obliged to receive the necessary appropriate and appropriate measures on a case-by-case basis to the detriment of the complainant, in order to prevent the recurrence of such an incident or behavior, such as recommending compliance, changing position, hours, place or manner of employment or even terminating employment without prejudice to the prohibition of the abuse of the right of article 281 of the Civil Code.

Everyone who suffers violence or harassment shall have the right to leave the workplace for a reasonable period of time without deprivation of pay or other adverse consequences, provided that he or she reasonably believes that there is an imminent danger to life, health or his/her safety, in particular, when the employer is the perpetrator of such behavior or when he does not take the necessary appropriate measures as above or when such measures are not capable of stopping the violent and harassing behavior. In this case, the employee is obliged to inform the employer in advance in writing, stating the incident of violence and harassment and the incidents that justify his/her belief that a serious danger to his/her life, health or safety is imminent. If the risk does not exist or has ceased to exist and the employee refuses to return to work, the employer has the right to address to the Labor Inspection Body (SEPE) to resolve the dispute. Finally, when an employer or a person exercising the managerial right or representing the employer violates the prohibition of violence and harassment during the conclusion or refusal to conclude the employment relationship or during its development, duration or termination, it violates the labor law and is imposed on him administrative sanctions by the Labor Inspection Body (SEPE).

Moreover, the provisions of Law 4808/2021 – and specifically in article 15 – provide that the burden of proof bears the accused, except in criminal courts, where the presumption of innocence of the accused prevails, while according to article 13 of the above Law the termination of an employment contract for reasons of revenge and retaliation against the person affected by incidents of violence and harassment in the workplace is prohibited and is considered, therefore, invalid. Finally, extensive reference is made to articles 16 to 19 of Law 4808/2021 on the responsibilities of the Labor Inspection Body (SEPE) in the examination of complaints and the imposition of administrative sanctions. Article 16 of Law 4808/2021 establishes an independent department in the Labor Inspection Body (SEPE), which, among other things, will monitor the progress of complaints, the preparation and submission of annual reports with quantitative and qualitative data on complaints, their management, cooperation with the Ombudsman within the scope of his/her competence, informing the regional services of the Labor Inspection Body (SEPE) about the legislative developments and keeping a register of employers, against whom an administrative sanction has been imposed for violation of the prohibition of violence and harassment at work, as well as any changes in sanctions.