I will start by giving pointers to employers followed by employees.

FOR EMPLOYERS

Sexual harassment violates a person’s Constitutional right to dignity (Article 28).

According to Section 6 of the Employment Act, it is only mandatory to have a sexual harassment policy if you have 20 or more employees.

I, however, strongly recommend having a policy irrespective of the number of employees – the policy goes a long way when there is need to defend the actions taken by an employer to prevent sexual harassment from taking place in the workplace. 

Bear in mind that sexual harassment can happen to both women and men.

According to the Employment Act, the policy should:-

  1. Include a statement that every employee is entitled to employment that is free of sexual harassment.
  2. Include a statement that the employer shall take steps to ensure that no employee is subjected to sexual harassment.
  3. Contain a definition of what sexual harassment is. This definition should be similar to the one set out in the Employment Act. Basically, sexual harassment is unwelcome sexual advances or behaviour of a sexual nature by an employer or the employer’s representative or a co-worker which contains either (i) a promise of preferential treatment in employment or (ii) a threat of detrimental treatment in employment or (iii) a threat about the present or future employment status of the victim (paraphrased).
  4. Include a statement that the employer shall take disciplinary measures against any perpetrator of sexual harassment.
  5. Provide an explanation of how complaints of sexual harassment may be brought to the attention of the employer; and
  6. Contain a confidentiality statement – that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation to the complaint.

Other points to note include the following:-

  1. The policy may contain any other matters but the above points are mandatory.
  2. The employer should bring the policy to the attention of every person under the employer’s direction.
  3. To demystify and de-stigmatise sexual harassment, the employer should organize forums where the policy is discussed. This also acts as a reminder.
  4. Take every complaint of sexual harassment seriously.
  5. The policy should be applied consistently.
  6. Complaints should be investigations expeditiously.
  7. Complainants who are found to have made untrue and malicious complaints should be disciplined.

An employer who fails to take steps to prevent sexual harassment in the workplace may be held jointly liable with the perpetrator in a case brought by the victim for compensatory damages.

FOR EMPLOYEES

If you suspect that you are being sexually harassed you should do the following:-

  1. Familiarize yourself with your employer’s sexual harassment policy (if any) and the law on sexual harassment.
  2. Seek guidance from someone you trust in the company about what you suspect is going on and how you should handle it.
  3. If you wish to take action against the perpetrator, do not delay in making a formal complaint.
  4. If you think the matter can be handled by having an informal conversation with the perpetrator, go ahead and do so.
  5. Because evidence is key in any claim, you should consider how you will prove the allegations of sexual harassment.

SEXUAL FAVOURS IN THE WORKPLACE

I was recently made to understand the concept of ‘willing buyer-willing seller’ sexual transactions in the workplace – where an employee initiates a sexual relationship with their employer or co-worker for the sake of sustaining their employment or moving up the corporate ladder. My take:-

  1. Acts of a sexual nature between co-workers only amount to sexual harassment if they are unwelcome.
  2. What’s to stop the junior employee from later on alleging that they were sexually harassed?
  3. A supervisor or line-manager who accepts such advances, if discovered, is liable to be summarily dismissed.

***THE END***

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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