- It can constitute a criminal offence
The Sexual Offences Act (SOA) criminalises sexual harassment and upon conviction, it can result in a fine not exceeding KShs.100,000 or imprisonment for a term not exceeding 3 years or both. The standard of proof is quite restrictive as the prosecution must show that
- the conduct was persistent, unwelcome and by a person in authority;
- the objective of the conduct is to make a decision on employment or career progression;
- if the perpetrator is a public officer, the objective is to make a decision on whether to render or withhold public services;
- the conduct has the effect of interfering with the victim’s work or educational performance or creating an offensive working environment or denial of a service due to a member of the public from a public officer.
- The perpetrator need not be a co-worker for a hostile work environment to be created
Sexual harassment can be perpetrated by persons not working for the employer but who access the premises with the permission of the employer.
These can be visitors, customers or even independent contractors.
Where this conduct is reported and no action
is taken to remedy the same, then the employer can be seen as having impliedly created or condoned a hostile work environment.
If an employee is forced to resign over such conduct, then an employer may be found liable for constructive termination of the employment contract.
- It need not be physical or directed at a victim for it to be offensive
Unwelcome suggestive or lewd comments, visualisations and shows of behaviour which directly or indirectly affect the performance of an employee can amount to sexual harassment. Examples of unwelcome indirect conduct:
- A phone call or discussion of a sexual nature by two employees within hearing-shot of another;
- A lewd screen saver on a co-worker’s desktop monitor which is visible to other co-workers.
- It is a legal requirement to have a sexual harassment policy in place
The Employment Act (EA) requires an employer who employs 20 or more employees to have in place a sexual harassment policy and to bring its existence to the attention of each employee or person working under the employer’s direction.
The policy must define sexual harassment as specified in the EA and contain specific statements set out in the Act including a statement explaining how sexual harassment conduct can be reported.
- What to do when it occurs:
Employer
- Treat complaint seriously
- Hear the perpetrator out in accordance with policy
- Take remedial action
- Communicate remedy to victim
- Keep matters confidential
Employee
- Make it clear it is unwelcome
- If it persists, report conduct to employer or labour officer (if reporting to employer is impractical)
- Be specific on the exact nature of the conduct
- Ask for feedback on complaint
