At a time where all companies with more 11+ employees must now have a SEC, let’s make a focus on their obligation regarding the prevention and protection against sexual harassment applicable as from 1 January 2019, in particular the appointment of a “sexual harassment and sexist acts” referent
1. Appointment of a "sexual harassment and sexist acts" referent in companies of 11 employees or more
The SEC must appoint a referent among its members, (either full members or substitutes), to deal with sexual harassment and sexist acts for the duration of their term of office (art. L. 2314-1 of the French Labor Code).
The appointment is a resolution passed by a majority of the members present - ideally at the first meeting of the SEC during which the Secretary and Treasurer are normally appointed.
This referent will have to attend, at least, the mandatory training regarding health, safety and working conditions paid by the employer in the same way as the other members of the SEC.
In the framework of this specific mission, the referent becomes a privileged contact for employees on issues of sexual harassment and sexist acts. The Law does not specify what the role and means of action of this referent are. However, undoubtedly, he/she may naturally use the prerogatives he/she holds under his/her role as a SEC member (i.e. right of alert or, in companies with more than 50 employees, proposal for preventive actions on health and safety aspects, etc.).
In this context, we recommend Companies to:
(a) Involve the referent be involved in the implementation of measures relating to the prevention of sexual harassment and sexist acts that could be implemented within the Company and/or
(b) If relevant, define the referent’s missions more precisely (e.g. in the internal regulations of the SEC).
2. Appointment of another "sexual harassment and sexist acts" referent in companies of 250 employees or more
When employing at least 250 people (threshold measured in accordance with the new rules for counting the employees set forth within the “PACTE” law), the Company must also appoint a referent of its own to deal with sexual harassment and sexist acts.
This second referent is an employee of the Company (for instance, from HR department), who will be in charge of guiding, informing and accompanying other employees to counter sexual harassment and sexist acts (art. L. 1153-5-1 of the Labor Code).
This duty may include, but is not limited to:
- the implementation of awareness-raising and training actions for employees and supervising staff;
- the implementation of internal procedures to facilitate the reporting and treatment of situations of sexual harassment or sexist acts;
- the conduct of an internal investigation following reports of sexual harassment in the Company.
However, this referent will not benefit from an outstanding protection against dismissal in this respect.
In the absence of legal provisions, it is up to each Company to plan and define the training and means of action available to this referent, necessary for the performance of his/her specific missions.
Reminder: Even though the Law does not provide any sanction, failing to appoint such referent is risky with regard to the general duty of care companies must abide by. It could indeed strongly weaken the position of the Company in case of litigation related to employees reporting situations sexual harassment.
3. Intensification of the obligation to display information regarding sexual harassment within the Company
In addition to criminal sanctions for sexual harassment or sexist acts, Companies must display in the workplace and in the premises where the hiring takes place:
- the civil and criminal remedies available in cases of sexual harassment;
- the contact details (telephone, address…) of the authorities and services in charge of these matters:
- occupational physician (or occupational health service)
- Labor Inspection,
- Defender of Rights (“Défenseur des droits”),
- where applicable the “sexual harassment and sexist acts” referent appointed among the SEC members (see paragraph 1 above),
- where applicable, the “sexual harassment and sexist acts” referent appointed by the Company (see paragraph 2 above).
Our recommendations :
- Put the appointment of the “sexual harassment and sexist acts” referent on the agenda of a SEC meeting (first meeting after the elections or other meeting) ;
- Appoint an additional referent in companies with 250 employees or more;
- Propose a specific training (at least a written document on the subject) on the role and missions of the referents;
- Inform the referents that their contact details will be displayed within the Company (posting or other means);
- Include the referents in actions relating to the prevention of sexual harassment and sexist acts set up within the Company
- If relevant, define more precisely the missions of the SEC referent in the internal rules of procedure of the SEC;
- Edit the internal displays regarding the prevention of sexual harassment.
Osborne Clarke's employment law team is of course at your disposal for any questions you may have in this respect. Our support can naturally include assistance in the appointment of referents as well as support in procedures relating to an employee reporting situations of sexual harassment and/or sexist acts.