Combating sexual harassment

The House of Representatives is currently studying the Industrial Relations Bill in committee and has approved a clause banning sexual harassment in the workplace.

The following is a code of practice that has been developed over the years by the European Commission which Malta can adopt to ensure effective implementation of the law.

The aim of this code of practice is to ensure that sexual harassment does not occur and, if it does occur, to ensure that adequate procedures are readily available to deal with the problem and prevent its recurrence.

The code thus seeks to encourage the development and implementation of policies and practices which establish working environments free of sexual harassment and in which women and men respect one another's human integrity.

Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct. Thus, a range of behaviour may be considered to constitute sexual harassment.

It is unacceptable if such conduct is unwanted, unreasonable and offensive to the recipient; a person's rejection of, or submission to, such conduct on the part of employers or workers (including superiors or colleagues) is used explicitly or implicitly as a basis for a decision which affects that person's access to vocational training or to employment, continued employment, promotion, salary or any other employment decisions; and/or if such conduct creates an intimidating, hostile or humiliating working environment for the recipient.

Recommendations to employers

The policies and procedures recommended below should be adopted, where appropriate, after consultation or negotiation with trade unions or employee representatives.

Experience suggests that strategies to create and maintain a working environment in which the dignity of employees is respected are most likely to be effective where they are jointly agreed.

A. Prevention (i) policy statements - As a first step in showing senior management's concern and their commitment to dealing with the problem of sexual harassment, employers should issue a policy statement which expressly states that all employees have a right to be treated with dignity, that sexual harassment at work will not be permitted or condoned, and that employees have a right to complain about it should it occur.

The policy statement should make clear what is considered inappropriate behaviour at work, and explain that such behaviour, in certain circumstances, may be unlawful.

It is advisable for the statement to set out a positive duty on managers and supervisors to implement the policy and to take corrective action to ensure compliance with it.

It should also place a positive duty on all employees to comply with the policy and to ensure that their colleagues are treated with respect and dignity.

The statement should explain the procedure which should be followed by employees subjected to sexual harassment at work in order to obtain assistance and to whom they should complain; that it contains an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and that employees will be protected against victimisation or retaliation for bringing a complaint of sexual harassment.

It should also specify that appropriate disciplinary measures will be taken against employees found guilty of sexual harassment. Once the policy has been developed, it is important to ensure that it is communicated effectively to all employees

(ii) Responsibility - Managers should explain the organisation's policy to their staff and take steps to positively promote the policy. Managers should also be responsive and supportive to any member of staff who complains about sexual harassment, provide full and clear advice on the procedure to be adopted, maintain confidentiality in any cases of sexual harassment and ensure that there is no further problem of sexual harassment or any victimisation after a complaint has been resolved.

(iii) Training - an important means of ensuring that sexual harassment does not occur and that, if it does occur, the problem is resolved efficiently, is through the provision of training for managers and supervisors.

Such training should aim to identify the factors which contribute to a working environment free of sexual harassment and to familiarise participants with their responsibilities under the employer's policy and any problems they are likely to encounter.

In addition, those playing an official role in any formal complaints procedure in respect of sexual harassment should also receive specialist training.

B. Procedures - (i) resolving problems informally - most recipients of harassment simply want the harassment to stop. Both informal and formal methods of resolving problems should be available.

Employees should be advised that, if possible, they should attempt to resolve the problem informally in the first instance. In some cases, it may be possible and sufficient for the employee to explain clearly to the person engaging in the unwanted conduct that the behaviour in question is not welcome, that it offends them or makes them uncomfortable, and that it interferes with their work.

In circumstances where it is too difficult or embarrassing for an individual to do this on their own behalf, an alternative approach would be to seek support.

Employers should designate someone to provide advice and assistance to employees subjected to sexual harassment, where possible with responsibilities to assist in the resolution of any problems, whether through informal or formal means.

It may be helpful if the officer is designated with the agreement of the trade unions or employees, as this is likely to enhance their acceptability. Such officers could be selected from personnel departments or from the employee's trade union or women's support groups and should have received appropriate training.

(iii) Complaints procedure - where the complainant regards attempts at informal resolution as inappropriate, informal attempts at resolution have been refused, or where the outcome has been unsatisfactory, a formal procedure for resolving the complaint should be provided. The procedure should give employees confidence that the organisation will take allegations of sexual harassment seriously.

By its nature sexual harassment may make the normal channels of complaint difficult to use because of embarrassment, fears of not being taken seriously, fears of damage to reputation, fears of reprisal or the prospect of damaging the working environment.

Therefore, a formal procedure should specify to whom the employee should bring a complaint, and it should also provide an alternative if in the particular circumstances the normal grievance procedure may not be suitable, for example because the alleged harasser is the employee's line manager.

(iv) Investigations - it is important to ensure that internal investigations of any complaints are handled with sensitivity and with due respect for the rights of both the complainant and the alleged harasser.

The investigation should be seen to be independent and objective. Those carrying out the investigation should not be connected with the allegation in any way, and every effort should be made to resolve complaints.

As good practice both the complainant and the alleged harasser have the right to be accompanied and/or represented, perhaps by a representative of their trade union or a friend or colleague and that strict confidentiality be maintained throughout any investigation into an allegation.

(v) Disciplinary offence - violations of the organisation's policy protecting the dignity of employees at work should be treated as a disciplinary offence and the disciplinary rules should make clear what is regarded as inappropriate behaviour at work.

It is also good practice to ensure that the range of penalties to which offenders will be liable for violating the rule is clearly stated and also to make it clear that it will be considered a disciplinary offence to victimise or retaliate against an employee for bringing a complaint of sexual harassment in good faith.

Where a complaint is upheld and it is determined that it is necessary to relocate or transfer one party, consideration should be given, wherever practicable, to allowing the complainant to choose whether he or she wishes to remain in their post or be transferred to another location.