The investigative documentary that was aired recently by BBC Africa Eye, titled “Sex for Work: The True Cost of Our Tea,” has revealed the degree of sexual harassment that takes place in work places. While the vice is abominable, the white-collar space is not spared either, with recurring stories of such incidences in media and other forums.
It behoves every person to take active steps to curb the situation.
Sexual harassment is defined in Black’s Law Dictionary, Tenth Edition as “a type of employment discrimination consisting in verbal or physical abuse of a sexual nature, including lewd remarks, salacious looks and unwelcome touching”.
Section 6 of the Employment Act defines sexual harassment as where an employer or a representative of the employer or a co-worker:
(a) directly or indirectly requests an employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express
(i) promise of preferential treatment in employment; (ii) threat of detrimental treatment in employment; or (iii) threat about the present or future employment status of the employee;
(b) uses language whether written or spoken of a sexual nature;
(c) uses visual material of a sexual nature; or
(d) shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
This definition, though broad, is very guiding on what would constitute sexual harassment in a workplace.
In addition, the same law requires that an employer with 20 or more employees to consult with the employees or their representatives if any, and to issue a policy statement on sexual harassment. Such a workplace policy should include among other matters a definition of sexual harassment; a statement that every employee is entitled to employment that is free of sexual harassment; a statement that the employer should take steps to ensure that no employee is subjected to sexual harassment; and a statement that the employer shall take disciplinary measures as they deem appropriate against any person who subjects any employee to sexual harassment. In addition to having a sexual harassment policy, the employer must ensure that the policy is implemented. Employers should and train their employees on the parameters of the policy as held in the case of Lydiah Mongina Mokaya versus St. Leornard’s Maternity Nursing Home Limited [2018] eKLR
Morrison J in Reed v Stedman (1999) IRLR 299 held that a characteristic of sexual harassment is that it undermines the victim’s dignity at work and constitutes a detriment on the grounds of sex, and that the lack of intent is not a defence.
It is the duty of the employer to protect all employees as held in the case of J W N versus Securex Agencies (K) Limited [2018] eKLR that;
The Court has also considered section 6(2) of the Act which imposed upon the respondent the duty, after consulting the employees or their representatives, to issue a policy statement on sexual harassment. Under section 6(3) such policy statement was to provide for definition of sexual harassment as provided for in the Act; employee entitlement to employment free from sexual harassment; steps taken to prevent sexual harassment; explain how to make or report to the employer complaints of sexual harassment; and non-disclosure of the complainant except for purposes of disciplinary process or investigating complaints.
Where a case of sexual harassment takes place, the employee is required to make out a prima facie case that there was sexual harassment at the work pursuant to section 47(5) of the Act and once this evidential burden is discharged the onus is on the employer to prove that there was no such conduct of sexual harassment and that there is a workplace policy which defines sexual harassment and employees are aware and can apply it to address any acts of sexual harassment against them at the workplace.
In the case of Lydiah Mongina Mokaya versus St. Leornard’s Maternity Nursing Home Limited [2018] eKLR the court in addressing an issue of sexual harassment of the employee at the shop floor held that;
Cases and instances of sexual harassment are extremely personalized and difficult to proof. More often than not, these would not be documented but comprise of overt and covert overtures by the offending party. It is therefore expected that when this arises, action should be taken towards reporting or raising the same with the powers that be, the employer or his agents. Sometimes the prevailing environment may not be facilitative of this. It would therefore be unreasonable to employ the standard burden of proof on this kind of matters. This is like in the present case.
Lack of proper systems to address the vice can be costly as was in the case of G M V versus Bank of Africa Kenya Limited [2013] eKLR where an award of ksh.500,000 was given.