A code of practice on measures to combat sexual harassment was issued recently in accordance with the resolution of the Council of Ministers on the protection of dignity of women and men at the workplace, and to accompany the Commission’s recommendation on this issue. (Council Resolution, 1990).
Its purpose is to give practical guidance to employers, trade unions, and employees on the protection of dignity of women and men at work. The code is intended to be applicable in both the public and private sectors.
Sexual harassment is unwanted conduct of a sexual nature, or other conduct based on sex, affecting the dignity of women and men at the workplace.
It can involve unwelcome touching, hugging or kissing; suggestive comments or jokes; sexually explicit pictures, screen savers or posters; unwanted invitations to go out on dates or requests for sex; intrusive questions about an employee’s private life, unnecessary familiarity; insults or taunts based on gender; sexually explicit e-mails or text messages; and behaviour that would also be considered as an offence under the criminal law.
A person’s rejection of or submission to such conduct on the part of employers or workers (including superiors or colleagues) cannot be used explicitly or implicitly as a basis for a decision that affects a person’s employment and/or if it creates an intimidating or humiliating working environment for the recipient.
Sexual attention becomes sexual harassment if it persists, once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious.
As a first step, employers should issue a policy statement, making it clear what is considered inappropriate behaviour at work. It should set out a positive duty on managers and supervisors to implement the policy and to take corrective action to ensure compliance, and also places a positive duty on all employees to comply with the policy.
The policy should be communicated effectively to employees, so these are aware that they have a right to complain and to whom they should complain, and the likely consequences of engaging in sexual harassment. Employees should be advised that, if possible, they should attempt to resolve the problem informally in the first instance.
If the conduct continues or if it is not appropriate to resolve the problem informally, it should be raised through the formal complaints procedure within the company.
Employers should designate an individual 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, ideally with the agreement of the trade unions or employees, as this will enhance their acceptability. Trade unions should take steps to raise awareness of the problem at the workplace and include appropriate clauses in the context of the collective bargaining process.
A formal procedure for resolving the complaint should specify to whom the employee should forward a complaint, and also provide an alternative if the normal grievance procedure may not be suitable. A case in point could be that the alleged harasser is the employee’s line manager.
Those carrying out the investigation should not be connected with the allegation in any way, and every effort should be made to resolve complaints fast. Grievances should be handled promptly and the procedure should set a time limit within which complaints are to be processed, in line with national legislation for initiating a complaint through the legal system.
The rights of both the complainant and the alleged harasser should be respected, including assistance by a representative of their trade union or a friend or colleague, the right to information and to respond and confidentiality throughout the investigation.
Violations of the organisation’s policy should be treated as a disciplinary offence, with clear terms of what inappropriate behaviour at work and penalties offenders are liable to.
Victimisation or retaliation against an employee for bringing a complaint of sexual harassment in good faith is also a disciplinary offence. No element of penalty should be seen to attach to a complainant.
For more information, visit www.ncwmalta.com.
Ms Attard is National Council of Women president.