Sexual harassment cases are one of the most sensitive and delicate matters to be handled in the workplace. In Romania, employers have a legal duty to protect workers from most forms of harassment, including sexual harassment, and their failure to do so could result in legal liability for the company and its administrators, as well as significant reputational risk to the business.
Therefore, conducting fair, real and reasonable internal investigations into sexual harassment complaints is a key aspect of ensuring a safe work environment, as well as protecting companies from future claims.
Once an internal investigation finds evidence of wrongdoing, a formal disciplinary process is instituted, which reviews the evidence and makes a formal decision as to what (if any) disciplinary action should be taken against the accused employee.
In the recent years, there have been a series of modifications to gender equality legislation, with a series of amendments made since 2015 to the Anti-discrimination Ordinance and the Gender Equality Law (for further details please see “Employers face new obligations concerning gender equality“). The key amendments were those made in 2018 and 2020, as well as the publication of implementation norms in 2019 for the Gender Equality Law.
Due to these new amendments, and importantly the obligation to inform and train employees in their rights and the companies’ obligations, there has been a significant increase in sexual harassment complaints. Companies should be prepared to see more of these cases in 2022 and beyond.
Considering the above, this article looks at some key considerations that an employer should keep in mind when conducting a sexual harassment investigation in Romania.
After receiving a sexual harassment complaint, measures should be taken by the employer as soon as possible to establish the facts and accuracy of the complaint. As a practical matter, the internal rules and procedures of the company will drive much of these initial steps. Therefore, a company’s internal rules and regulations must be up to date and comply with any recent changes in the law or good practice.
One of the first actions of a company is for the representative body of the employer to:
- issue a decision according to which the investigation is launched; and
- appoint a person or team to conduct the investigation (the review team).
The review team that conducts the investigation should be experienced in internal investigations and have a solid understanding of, and sensitivity to, equal opportunity and gender issues in the workplace.
When conducting an investigation, companies with more than 50 employees are required to have a member of staff who is trained in issues related to gender equality and equal opportunity. Such a person should be on the review team. However, it is common for outside counsel to be appointed, and it would be expected that they would have the appropriate personnel.
Another key aspect is to determine the duration of the investigation (the timeline set for the investigation must be reasonable, depending on the complexity of the complaint). For example, it is common for employers to use a 30-day term with the possibility of extension. An extension is usually considered reasonable if the case is complex or if there are other objective causes for such extension (such as the absence from work of one of the parties involved).
Finally, an employer should take precautions to preserve the confidentiality of the investigation and of all parties involved. For example, the number of persons involved in the investigation should be limited, and the need for confidentiality and compliance with all related internal rules and regulations should be stated clearly in the investigation decision.
According to the legislation, there is a general obligation for the employer to inform the state authorities regarding any sexual harassment complaints. However, the law is not clear regarding the extent of the information to be submitted and it does not set out the competent authorities to receive such notification. There is little guidance or litigation on this matter. Both the Territorial Labour Inspectorate and the National Council for Combating Discrimination are the applicable state authorities to be notified.
Such notification is subject to the provisions of the General Data Protection Regulation. As a matter of practice, the company should keep any filing with the authorities to a minimum and should provide only the fact that the company received a complaint (without indicating the names of the claimant or the accused and without providing details of the facts), as well as stating that an internal investigation was initiated to review the complaint.
The law requires such notification to be submitted “immediately”; however, it does not provide a definition of this timeframe. Until further guidance, the company or the review team should inform the relevant state authorities about the allegations and/or complaints as soon as practical (ie, within two days).
The review team will need to inform the parties (both the person making the claim as well as the accused party) of the opening of an investigation and interview them accordingly. A brief summary of interview practices and techniques is as follows:
- Any investigation should be conducted in a strategic manner, with a well-organised plan as regards the interviewing of the parties and witnesses. The interview order of parties and witnesses is important. For example, depending on the facts of the case, it may be preferable for the claimant to be interviewed first, followed by their suggested witnesses, before the accused person is approached.
In addition, to ensure an accurate collection of information, the review team should request additional information regarding the facts and alleged actions from any witnesses that may be relevant to the case, including any proposed by the claimant and/or by the accused. As a practical matter, this list tends to grow as the investigation proceeds, as more persons are indicated as having knowledge of the facts.
- As a general rule, it is preferable to interview most witnesses in person, although depending on the circumstances, it may be satisfactory to receive written responses to questions. Detailed notes of the interviews and discussions are kept and, if needed or appropriate, statements may be drafted, with the participates to the interview being asked to sign their statement.
- The employer should be careful, in relation to witnesses and other third parties, that interviewees receive only the information relevant to their aspect of the investigation and only to the extent necessary for them to be able to provide relevant information to the review team. The idea is to keep information confidential and minimise, to the extent possible, the dissemination of such information. Interviewees should be informed that they are to keep all information confidential and avoid discussing matters covered during the investigation with any third party or the target of the investigation.
- There is no legal requirement to give an “Upjohn warning” to employees. However, it is good practice to provide a clear statement of the nature and purpose of the interview, as well as the position and legal status of the interviewer (eg, identifying as corporate counsel and not the employee’s lawyer).
- If the accused (or other parties) should be represented by a lawyer during the internal investigation, although the legal rules for excluding counsel at this stage are not particularly clear, it is generally recommended not to object to such a request. In fact, this often occurs with cases involving senior management, especially in high-profile matters.
Following the investigation and the analysis of the all the documentary material, the review team should issue a final report. The report should contain a summary of the findings and any conclusions that the review team may have with regard to the complaint. These conclusions should be well-reasoned and clear, which helps as regards a party objecting to the findings and seeking further recourse elsewhere.
The final report is filed with the appropriate management team of the company, which then needs to make a final determination as to the complaint as well as decide on the next steps and actions (eg, opening and conducting a formal disciplinary hearing and taking formal action against an employee). This decision should be in writing and it should include clear instructions against any future retaliation. The decision is then communicated to both the claimant and the accused.
If the complaint is not supported by the facts and is dismissed, the claimant may seek further review with the National Council for Combating Discrimination and/or the court to request moral damages.