Every employer should know that when the new sexual harassment law comes into effect, it will establish a Sexual Harassment Tribunal that will hear sexual harassment claims brought by a worker against a co-worker or an employer. The new sexual harassment law intends to impose a duty on an employer to take certain measures to keep a workplace safe from sexual harassment. It also imposes a consequence on an employer for not doing so.
The duty imposed on an employer under the sexual harassment law is to make every reasonable effort to ensure that the workers employed are not sexually harassed in the course of their employment. In doing so, the law requires a written sexual harassment policy to be in place and sets a certain timeline for the commencement of an investigation. Does that mean failure on the part of an employer to commence an investigation within the prescribed time is a breach of duty? Can a breach of confidentiality by an employer be a breach of his duty? We expect each case to turn on its own facts, but these questions are certainly worth consideration.
What we do know is that the Sexual Harassment Tribunal has the power to order an employer to pay over to an aggrieved worker up to J$900,000 if the Tribunal finds that the employer failed to discharge its duty.
Under the new law, an employee who is aggrieved by or not satisfied with the outcome of any disciplinary proceedings following a complaint of sexual harassment to her employer may lodge a complaint against that employer at the Sexual Harassment Tribunal.
We already know that, by law, any worker who is charged by his employer for misconduct is entitled to due process. So, a worker accused of sexual harassment will, like any other worker charged for any other form of misconduct, be entitled to due process. In fact, many employers have made hefty payments to workers they have dismissed unfairly. Employers know all too well the importance of due process in any disciplinary procedure and the consequences for not observing them. Where an employer forgets, the IDT is certain to remind them of what not to do.
Wedged between a rock and a hard place is where you are likely to find an employer when this law comes into effect. As already stated, an employee who is dissatisfied with the findings of her employer may seek redress at the Sexual Harassment Tribunal. Of course, the worker accused of perpetrating the sexual harassment may also seek redress at the IDT. Redress against who you may ask? The employer wedged between a rock and a hard place.
A worker can very well be guilty of sexual harassment and still compensated by the IDT for unjustifiable dismissal. If the employer is successful in defending a claim against a worker who claims he was not given due process, against whom can that employer seek redress? Or, if an employer is successful against an employee who complained of sexual harassment to her employer was dissatisfied with the company’s findings, so she advanced her claim to the Sexual Harassment Tribunal? What form of redress is available to that employer? The law is silent on these issues, and we suspect an employer will have to bear the loss. One thing is for certain, the passage of this law raises the standard for an employer to satisfy in order to claim it has discharged its duty.
It is argued that the sexual harassment law codifies what always existed at common law. An employer has a duty at common law to provide a safe place of work which extends to a safe work environment free from sexual harassment. Even if this duty existed under common law, the codification of this law to statute creates a higher standard for an employer to satisfy and imposes serious consequences for failure of an employer to act.
It is incumbent on every employer to ensure that they are aware of this new law and how this new law and its implementation will impact their business. The law spells a complete shift in the culture of how we interact in the workplace and will, no doubt, enure to the benefit of our society as a whole, especially in relation to women how they are treated in the workplace.
Jahmar Clarke is an attorney at Myers, Fletcher and Gordon and a member of the Firm’s Litigation Department. He may be contacted at firstname.lastname@example.org or through the Firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.