Judgment No. 2642
1. The decision of the Director-General of 14 February 2006 is set aside.
2. The WHO shall pay the complainant moral damages in the sum of 30,000 Swiss francs within one calendar month of the delivery of this judgment.
3. It shall also pay her 5,000 francs in costs.
"In Judgment 2552 the Tribunal pointed out that an accusation of harassment 'requires that an international organisation both investigate the matter thoroughly and accord full due process and protection to the person accused'. Its duty to a person who makes a claim of harassment requires that the claim be investigated both promptly and thoroughly, that the facts be determined objectively and in their overall context (see Judgment 2524), that the law be applied correctly, that due process be observed and that the person claiming, in good faith, to have been harassed not be stigmatised or victimised on that account (see Judgment 1376)."
ILOAT Judgment(s): 1376, 2524, 2552
inquiry; due process; good faith; organisation's duties; respect for dignity; safeguard; harassment; investigation
The evidence which the Grievance Panel considered in relation to the question whether there was a pattern of harassing behaviour included the statements of and interviews with Ms X and Ms Y. To a large extent the Panel
accepted their version of events but held that it did not constitute harassment. Ms X, whose consultancy was coming to an end, gave an account to the effect that she had been asked by Mr A. to telephone him at his home on a particular evening when she returned from a mission. When she did so, she was asked to go to his apartment. No other person was present when she arrived. After some time she was asked to sit closer to him and he thereupon held her hand for what she said was a prolonged time. Mr A. admitted that he held her hand but said that he “did not intend anything thereby”. Ms X claimed in her written statement that he also tried to kiss her in an intimate way. In her interview, she said that she felt that he wanted to kiss her in an intimate way but that she tried to make it into a “general kiss”. Mr A. said that he kissed her goodbye “in the customary way”. The Panel accepted that Ms X found the incident discomforting and offensive and was “confronted with a situation that she experienced as vulnerable”. However, the Panel considered that her vulnerability was conditioned by an external factor, namely whether or not she should tell her husband about the incident. According to the Panel, that was not something about which Mr A. could “reasonably be expected to have been aware”. So far as concerns Ms Y, her evidence was that in the period between 1998 and 2000, during which Mr A.
was, for a time, her second-level supervisor, he frequently suggested that they should meet after work or came into her office, closed the door and asked for a kiss. She said in her interview that she managed her interactions with
him by sitting down or physically disengaging if she felt uncomfortable with an embrace. She indicated that she did not object verbally or protest. The Panel noted that she did not claim “that any of these embraces or kisses was
ever lascivious or overtly sexual in nature, but rather that they were ‘ambiguous’”. Mr A. was asked if Ms Y might have “perceived his gestures as other than ‘brotherly’”. He replied that he did not know and said that she had never told him to desist. The Panel accepted that Ms Y “might well have found herself in a position where, despite having been offended or made uneasy […], she did not feel a sufficient sense of security to object openly”.
However, it concluded that Mr A. “did not clearly do wrong to act as he apparently did, and cannot therefore be held responsible for the corresponding vulnerability that Ms [Y] claims to have experienced”. Moreover, it noted that she “could have ended [his] unwelcome behaviour at any time by objecting to or protesting to him about his actions”. The Grievance Panel further noted in relation to both Ms X and Ms Y that their “vulnerability” did not result in the loss of job-related benefits or entitlements or the threat of any such loss. Nor, in its view, did the circumstances constitute “a hostile, intimidating or abusive work environment”. It is notable that this finding is expressed in terms of an “abusive work environment”, rather than an “offensive work environment”, as used in the definition of “harassment”. There can be no doubt that actions of the kind described by Ms X and Ms Y are capable of giving rise to an offensive work environment and that those persons found that they did. Moreover, it is significant that the definitions of “harassment” and “sexual harassment” require only that the conduct in question interfere with work. Further, the Panel had regard to irrelevant considerations, namely whether Ms Y objected to or protested against the conduct which she experienced and whether, in either case, the conduct resulted in the loss of job-related benefits. The findings in relation to Ms X and Ms Y involve errors of law and cannot stand. Because those findings were used by the Grievance Panel to found its conclusion that there was no pattern of harassing behaviour on the part of Mr A., so, too, that conclusion cannot stand. And because that conclusion was critical to its finding that the complainant was not sexually harassed, that finding, which involved a further error insofar as the Panel considered that a warning as to verbal behaviour did not extend to physical conduct, cannot stand. It follows that the Director-General’s decision of 14 February 2006 must be set aside.
Because various incidents were, to a large extent, not disputed, the Tribunal is able to substitute its own decision for that of the Director-General. In this regard, it is convenient to note that the Grievance Panel found that Mr A. exhibited “a pattern of behaviour” that, although not properly characterised as “clearly inappropriate or sexually harassing”, could be characterised as “a more than usually personal approach to management and to relationships in the workplace”, and said that it “did appear to some as ambiguous and open to differing interpretations”. Clearly, Mr A. had made remarks to her that could be characterised as “flirtatious”, as could the remark to her secretary, Ms Z. In that context, it was not unreasonable to take Mr A.’s remark that he would be happy to give her a five-year extension after two years “if [they got] on well” as having a sexual sub text. Moreover, it is not disputed that the complainant said something to Mr A. to indicate that she found his remarks offensive. And in this, her actions were entirely reasonable: “flirtatious” remarks made in the workplace by a male supervisor to female staff inevitably diminish their professional standing. Having made clear to Mr A. that she found his remarks offensive, he should reasonably have known that she would also find inappropriate physical contact offensive. The complainant’s claim of inappropriate physical contact, whether it be described as “stroking” or an “up-and down motion” – a distinction which is, at best, elusive – was supported by her near contemporaneous account to the Human Resources Officer who described her as exhibiting a mixture of anger and fear. Given the undisputed accounts by Ms X and Ms Y of the behaviour of Mr A., the overwhelming weight of the evidence requires a finding that the complainant was sexually harassed.
evidence; sexual harassment
complaint allowed; decision quashed; sexual harassment