Writer: Sherica Mohamed-Cumberbatch
In Barbados, the Employment Sexual Harassment (Prevention) Act 2017 came into effect on December 15, 2017. Its purpose is to make provision for the protection of employees from sexual harassment in the workplace.
What is sexual harassment?
'Sexual harassment' is defined in the legislation as:
a) the use of sexually suggestive words, comments, jokes, gestures or actions that annoy, alarm or abuse a person;
b) the initiation of uninvited physical contact with a person;
c) the initiation of unwelcome sexual advances or the requests of sexual favours from a person;
d) asking a person intrusive questions that are of a sexual nature that pertain to that person’s private life;
e) transmitting sexually offensive writing or material of any kind;
f) making sexually offensive telephone calls to a person; or
g) any other sexually suggestive conduct of an offensive nature in circumstances where a reasonable person would consider the conduct to be offensive.
What is the workplace?
'workplace' is defined as:
a) any location or place where persons work and includes any other location or place where an employee is required to conduct the business of the employer; or
b) any location or place to which that person is sent by the employer for the purpose of receiving training or attending a conference on the employer’s behalf.
Who is an employer?
'employer' is defined in relation to an employee as the person by whom the employee is employed, and in a case where the employment has ended, the person by whom the employee was employed.
Who is an employee?
'employee' is defined as an individual in the service of another person under a contract of service and includes:
a) an apprentice;
b) a person on probation;
c) a full or part-time employee; and
d) a person who is remunerated by way of a commission.
What must the employer do?
Establish, present and explain a Written Policy Statement.
By May 2018, employers must ensure:
a) that there is a clear written policy statement against sexual harassment within the workplace for which that employer has responsibility;
b) that a statement of that policy is presented to each employee already in employment with the employer; and
c) that procedures are put in place to assist every employee in understanding the policy statement.
(New employees are to be given the written policy statement upon commencement of employment.)
Investigate a complaint
Decide, discipline, remedy, notify
Where an employee alleges that he/she has been sexually harassed by an employee or client, employers must follow the procedure set out in the Act within the time frames set out in the Act:
a) where the complaint is made against the employee, inform him in writing of the complaint and its details within two workdays;
b) in the case where the complaint is made against the client, take such action as he considers appropriate in the circumstances to bring the matter to the attention of the client; and
c) commence investigation of the complaint within 14 days of the complaint being lodged and shall complete the investigation without delay.
After the investigation is conducted by the employer:
a) if the employer finds that sexual harassment has been committed by the employee, the employer shall take such disciplinary action as is appropriate;
b) if the employer finds that sexual harassment has been committed by the client, the employer take such action as he considers appropriate in the circumstances to remedy the situation.
c) if the employer finds that sexual harassment has not been committed, the employer shall notify the complainant and the respondent in writing of his decision and the reason for his finding.
What is in the Written Policy Statement?
The policy statement against sexual harassment referred to in section must contain the following provisions:
a) a definition of sexual harassment that is substantially the same as the definition in section 3 of the Act;
b) a statement to the effect that every employee is entitled to employment free of sexual harassment;
c) a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment;
d) a statement to the effect that the employer will take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction who subjects any employee to sexual harassment;
e) a statement explaining how complaints of sexual harassment may be brought to the attention of the employer;
f) a statement to the effect that no person shall disclose the name of a complainant or the name of the respondent or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation thereto;
g) and a statement informing employees of the provisions in the Act which gives them a right to make a complaint where sexual harassment is committed against them and the relevant authority to whom the complaint must be made.
An employer is prohibited from suggesting to an employee that the prospects of wording conditions of that employee are contingent upon the employee's acceptance or toleration of sexual advances.
There are rights of complaint to the Chief Labour Officer and the Employment Rights Tribunal, and the a Judge in Chambers.
The Act prohibits victimization of employees who:
a) reject an act of sexual harassment
b) lodge a complaint under the Act
c) testify or participate in any investigation or proceedings or hearing
d) makes or proposes to make a complaint
e) furnished or proposed to furnish information or documents.
No one may publish a report of, or any information relating to, any proceedings under this Act.
DISCLAIMER: This article is not to be construed as the giving of legal advice.