THE FURY provoked in Britain this week over the decision by Judge Alistair McCallum to halt the trial of a policeman accused of groping female colleagues illustrates the problem of sexual harassment in a nutshell.
Even if a diligent employer does go to the lengths of prosecuting an employee for sexual harassment inadequate legal recognition of the problem and deep cultural prejudice have to be overcome before serial gropers learn that their conduct is simply not acceptable.
Judge McCallum felt a "sound ticking off" would have been more appropriate for a man who had on two occasions fondled the breasts of a colleague. The trial the judge argued, was likely to do more harm than good to the police and "no serious good was being served" by the public airing of the incident.
To the credit of senior police officers that view was hotly contested. The assistant chief constable of the West Yorkshire police Norman Bettison, said he was disappointed by the decision: "The force stands by its decision to bring the case to court and hopes this sends a clear signal that any form of physical abuse or harassment is totally unacceptable."
The detective chief inspector, who investigated the case, Lynne Tolan, described the judge's comments as "biased, crass, prejudicial, outdated and completely out of order" - as close to contempt of court as makes no difference.
It was precisely this sort of problem which prompted an initiative this week from the Social Affairs Commissioner, Padraig Flynn. He has asked the social partners to look at the possibility of EU wide legislation to toughen up the implementation of recommendations and a code of conduct dating from 1991.
The move is part of a package of measures aimed at strengthening the position of women in the workplace including a code of practice for equal pay for work of equal value. The package has met with "strong reservations" from employers, while unions say it is not tough enough because it is not binding.
The Commission agreed to see if it can get support under the Social Protocol - with Britain opting out - for a directive which would require that the burden of proof in sexual harassment cases was shared.
A report from the Commission this week shows that there are serious divergences between member states as regards the implementation of the 1991 recommendations. The report deals with both legislation and the approach taken by the social partners.
Many member states still rely on the courts to interpret general equality legislation as prohibiting harassment. In Greece, two cases have been successfully upheld based on an employer's legal obligations to guarantee working conditions which protect the employee's morals and personal integrity. But in general there is no crime of sexual harassment and the report finds no evidence of any agreement between employers and unions on the issue.
On the other hand the French have amended their penal code to ban sexual harassment, making it punishable by up to one year in jail and a fine of £12,000. The law provides for both the protection of the victim and the prosecution of the offender.
Irish law is on a 1985 Labour that "freedom from sexual harassment is a condition of work which an employee of either sex is entitled to expect". This is supplemented by an Employment Equality Agency 1994 code of conduct modelled on the Commission's code. Under this the onus is on an employer to ensure employees are free from harassment.
While the Commission recommendation required authorities to raise awareness of the problem, the report found huge variations from country to country. There are some excellent examples, the report says, of trade union follow up, but "these tend to be the exception rather than the rule".
Employer organisations "appear in general to be less aware of the contents of the code of practice and seem rather reluctant to implement measures . . . in the workplace". However, the report acknowledges this is less true of Ireland and Britain.
Since the recommendation, five states - the Netherlands, Belgium, France, Austria and Finland - have adopted specific legislation on sexual harassment.
Spain and Germany have defined sexual harassment in their laws, while Italy and Ireland are in the process of producing legislation.
With the exception of the UK, which has extensive developed case law on the issue, legal remedies are largely "theoretical" in other states.
Not surprisingly the report concludes that more needs to be done.
