The Italian Supreme Court, with the very recent decision no. 23295/2023, stated that the dismissal of a person, who makes sexual allusions, is lawful and such behaviors cannot be justified because of their lightheartedness or superficiality.
The Italian Supreme Court condemned the behavior of the employee who made verbal sexual allusions to another employee, who worked as a bartender. Such behavior was reported by both the company and another employee.
In particular, the Italian Supreme Court clarified that those actions constitute a legitimate reason of dismissal even if they do not result in physical assault, since “those unwanted behaviors, carried out for sexual reasons, have the purposes of effecting or violating the dignity of a male or a female worker and they create an intimidating, hostile, degrading, humiliating or offensive atmosphere ”. This principle was already stated in the 2006 Consolidated Text on Equal Opportunities, which classified verbal sexual comments in the workplace as sexual harassment.
Such conducts are considered “sex discrimination” under the Directive (EU) no.73/2002, according to which “anyone who violates the dignity, reputation and safety of their colleagues may be lawfully dismissed”. The employer is obliged to protect the physical and mental health of his employees, therefore, he is entitled to fire the individual who uses inappropriate or unsuitable language, even if he uses it as “a joke”. The employer is also entitled to carry out a disciplinary procedure against the individual, who makes sexual allusions.
In addition, such behaviors were considered as sexual harassment, punished under article 660 of the Italian Criminal Code, even if they did not have any physical consequences and the individual was acquitted of stalking. They were not considered as conducts integrating the most serious crime of sexual assault, since they did not impact the physical sphere. They cannot be deemed as stalking, because such conducts were not reiterated and did not create an enduring state of anxiety and fear on the victim.
In light of the above decision, it can be deduced that is of fundamental importance for the seafarers to properly behave on board. Generally, sexual allusions are contractually provided as a lawful case of dismissal. In case of lack of such contractual provisions, the dismissal may be also carried out pursuant to Italian law, as clarified by the Italian Supreme Court.
A seafarer, making sexual allusions, may be lawfully dismissed and he may also have criminal repercussions under Italian law. In fact, a separate criminal proceeding may be initiated by the victim with possible conviction of sexual harassment (imprisonment up to six months), sexual assault (imprisonment from six to twelve years) or stalking (imprisonment from one year to six years and six months).
Despite the legal consequences, it is fundamental to have a peaceful and calm environment on board for the safety of the owner, of the crew and of the guests. Seafarers, who create unpleasant situations by making sexual allusions to other seafarers or to the guests, may also create economic damages to the owner in case of charter activities, since the guests will not want to come back on board and it will be negative publicity for the yacht. Try to imagine a great experience, sailing the Mediterranean coasts, ruined by inappropriate and misplaced comments.
Those inappropriate behaviors are not often reported by the victims because of fear. Victims may leave their jobs without any reason, causing damages to the owner, who finds himself unstaffed.
PG Legal has an extensive expertise in dismissals and matters of labor law connected to seafarers and has, several times, assisted owners willing to dismiss a member of the crew for sexual-related causes. PG Legal is able to assist the owner in all steps of the disciplinary procedure and of the actual dismissal.