All places of work should offer a safe working environment, whereby employers and employees will be able to carry out work efficiently and productively, free from any type of harassment.
The Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta (hereinafter referred to as EIRA) makes a distinction between harassment of a more general kind, and sexual harassment which is classified under its own specific category. Article 29(1) of the EIRA explains that harassment takes place whenever an employee or employer is subjected to
any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of that person is based on sexual discrimination and which could reasonably be regarded as offensive, humiliating or intimidating to such person.
Unwelcome behaviour by a colleague which is aimed at offending, humiliating or intimidating a person is therefore tantamount to harassment. Such behaviour could leave an impact on the emotional wellbeing of an individual who would feel constantly ridiculed and uncomfortable at the place of work. Many employees recount stories of having to go through such ordeals. Although even one instance of such unwelcome behaviour is enough to constitute harassment, often times this situation is made even worse as other colleagues start joining in, rather than exhibit clear concern and disapproval at these acts of harassment. This tends to leave the individual feeling more isolated at the place of work, as naturally the person in question would become more preoccupied with avoiding or tackling such behaviour on a day-to-day basis rather than with the workload itself.
Article 29(2) of the EIRA then goes a step further and explains in more detail a more specific type of harassment, commonly known as sexual harassment. This type of harassment takes place whenever sexual favours are requested from the victim, or when the victim is subjected to an act of unwelcome physical intimacy. This behaviour is usually preceded by any act or conduct with sexual connotations against the victim, which behaviour in and of itself also constitutes sexual harassment. As explained by Article 29(2) of the EIRA, the latter behaviour includes,
spoken words, gestures or the production, display or circulation of written words, pictures or other material where –
(i) the act, request or conduct is unwelcome to the victim and could reasonably be regarded as offensive, humiliating or intimidating to the victim;
(ii) the victim is treated differently, or it could reasonably be anticipated that the victim could be so treated, by reason of the victim’s rejection of or submission to the act, request or conduct.
Such behaviour is extremely serious as it jeopardises the safety of the individual at the place of work. The responsibility of ensuring that harassment does not take place at the workplace is placed on the employer, whereby in virtue of the Occupational Health and Safety Act, Chapter 424 of the Laws of Malta, the employer is obliged to “prevent physical and psychological occupational ill-health” of the employees. Therefore, the employer is responsible for working together with all employees to promote and safeguard the health of all individuals and this can be best achieved by having sound and effective policies at the place of work.
An Anti-Harassment Policy at the place of work should emphasise the importance that behaviour tantamount to harassment of any type will not be tolerated either at the place of work, or at any place which can be considered as an extension of the workplace. This means that such a policy should also be applicable in such cases when harassment takes place during a social event or gathering of the employers and/or employees, even if such events take place after normal business hours. With the rise and impact of social media, it would also be advisable to prohibit harassment on social media platforms, particularly through the use of work group chats. An all-rounded policy prohibiting harassment would ensure that the relationship between all employers and/or employees concerned is safeguarded from such behaviour.
Furthermore, employers must also ensure that such policies are effectively implemented and that victims are able to easily report any kind of harassment directed towards them. By means of an appropriate complaint procedure, the employer must then take all the necessary measures to investigate such complaints and to accordingly take the appropriate actions against anyone found in breach of an Anti-Harassment Policy, including disciplinary actions.
Ultimately, should an individual still suffer from harassment at the place of work, then such person may resort to the Industrial Tribunal and lodge a complaint within four (4) months of the alleged breach. Article 28 of the EIRA seeks to safeguard persons who lodge complaints of such a sensitive nature and clarifies that
28. It shall not be lawful to victimise any person for having made a complaint to the lawful authorities or for having initiated or participated in proceedings for redress on grounds of alleged breach of the provisions of this Act, or for having disclosed information, confidential or otherwise, to a designated public regulating body, regarding alleged illegal or corrupt activities being committed by his employer or by persons acting in the employer’s name and interests.
This provides victims of harassment with an extra level of protection, empowering them to take an action against any person harassing and/or victimising them. Upon hearing the complaint, the Industrial Tribunal will then proceed with carrying out an investigation as it deems fit. If it transpires that such complaint was a justified one, then the Industrial Tribunal may proceed and take such necessary measures as it considers most appropriate in the circumstances. In this case, payment in the form of compensation for any loss or damages suffered by the individual as a consequence of the breach, may also be ordered by the Industrial Tribunal.
Furthermore, the EIRA also clarifies that if a person is found guilty of harassing any other individual at the place of work, then such person will be guilty of an offence, and upon conviction shall be liable to imprisonment for a period ranging from six (6) months to two (2) years and/or to a fine (multa) of not less than five thousand euro (€5,000) and not more than ten thousand euro (€10,000).
Lodging a complaint in relation to harassment with the Industrial Tribunal does not preclude the victim from taking other actions. This includes actions before any other court of law, particularly before the Criminal Court and/or lodging a complaint before the National Commission for the Promotion of Equality (NCPE) in the case of sexual harassment.
Ultimately, the aim of any enterprise should be that of safeguarding the well-being of all as only this would ensure that success may be truly achieved.
Dr Charlene Gauci
This article may also be accessed on The Commercial Courier.
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.