Written By: Jaylene Squires, Attorney-at-Law
It starts innocently enough. A junior employee walks into the office and her manager greets her with a lingering comment: “You looking hot this morning! That skirt was made for you.” Everyone laughs it off as picong. Weeks later, the same manager begins sending WhatsApp messages late at night. They consist of jokes at first, then suggestive memes, and eventually a photo she never asked for. The employee feels uncomfortable, but HR waves it away as “just his personality.” One Friday, at a company lime, the manager corners her near the bar, presses against her, and grabs her waist despite her protests.
This hypothetical scenario is common in many workplaces, where conduct often begins as seemingly innocuous teasing, casually dismissed as harmless banter, but progressively escalates into unwanted physical contact, intimidation, and fear. Too frequently, such behaviour is viewed solely as a matter for internal Human Resource (“HR”) intervention. However, this so-called “playful touching” may in fact constitute a criminal offence.
The truth employers must face is this: workplace harassment is not always just an HR issue. This article explores when workplace harassment crosses into criminal liability via sexual harassment and what employers must do to protect their employees, comply with the law, and shield their organisations from liability.
What is Sexual Harassment?
Within the framework of the International Labour Organization (“ILO”) Convention No. 111[1] and according to the 2002 General Observation of the ILO Committee of Experts, sexual harassment contains the following key elements:
- Quid Pro Quo: any physical, verbal or non-verbal conduct of a sexual nature and other conduct based on sex affecting the dignity of women and men, which is unwelcome, unreasonable and offensive to the recipient; and a person’s rejections of, or submission to, such conduct is used explicitly or implicitly as a basis for a decision which affects the person’s job; OR
- Hostile Work Environment: Conduct that creates an intimidating, hostile or humiliating working environment for the recipient.
Further, our local Court in Trade Dispute No.17 of 1995 between Bank Employees’ Union and Republic Bank Limited, defined sexual harassment in the following way:
“…Therefore when we speak of sexual harassment or any derivative thereof, we mean no more than sexual misconduct, directed, in the workplace, at an unwilling victim to whom that misconduct is offensive, unsettling, upsetting, psychologically damaging or otherwise stressful.”
The Dual Reality- HR Issue and Criminal Offence
Any form of harassment of one worker by another, including sexual harassment, is misconduct; a situation typically covered by most companies’ codes of conduct and disciplinary policies. However, if a worker breaches confidentiality, this is also caught under the umbrella of misconduct. Are they the same? The short answer is no. Sexual harassment in the workplace exists in a dual reality.
As a matter of criminal law, in Trinidad and Tobago, sexual harassment is not an offence sui generis. However, behaviours that are colloquially described as sexual harassment frequently fall within the ambit of existing statutory provisions, most notably under the Sexual Offences Act, Chap. 11:28, and the Offences Against the Person Act, Chap. 11:08.
Under the suite of the aforementioned criminal law legislation, the following offences which cover forms of sexual harassment exist:
- Rape (Section 4(1), Sexual Offences Act, Chapter 11:28);
- Grievous sexual assault (Section 4A(1), Sexual Offences Act, Chapter 11:28);
- Sexual intercourse with a minor in employment/control relationship (Section 11(1), Sexual Offences Act, Chapter 11:28);
- Indecent assault (Section 15, Sexual Offences Act, Chapter 11:28);
- Serious indecency (Section 16, Sexual Offences Act, Chapter 11:28);
- Assault occasioning actual bodily harm (Section 30, Offences Against the Person Act, Chapter 11:08); and
- Common assault (Section 30, Offences Against the Person Act, Chapter 11:08).
While the offence of Rape may be easy to spot and label a criminal offence, the others present some difficulty. For instance, in the scenario above, the manager, by sending the unwanted genitalia photo, by grabbing the employee’s waist without her consent and despite her protests, may have committed the offence of indecent assault.
While treating sexual harassment as a criminal matter does not expressly create a duty on the part of employers to promulgate policies and remedies in the workplace or create liability on the part of the employer for the harassing behaviour of employees, the following principles do.
Employers are bound by principles of employment law and industrial relations to provide a safe and secure working environment, to investigate complaints of misconduct diligently, and to safeguard employees against retaliation. Specifically, section 6 of Occupational Health and Safety Act of Trinidad and Tobago, Chapter 88:08 places a statutory requirement on the employer to, inter alia, provide and maintain a working environment for his/ her employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate, as regards amenities and arrangements for their welfare at work.
Further, in Trade Dispute No.17 of 1995 between Bank Employees’ Union and Republic Bank Limited, His Honour Bernard referred to a common law duty on employers to provide a safe system of work, stating, among other things:
“There is a common law obligation on an employer to provide a safe system of working…..That obligation may well extend to the provision of a work environment which is free of the threat or application of sexual coercion by one employee towards another.”
It must also be noted that victims of sexual harassment in the workplace have simultaneous redress via the Equal Opportunity Commission as it has held by the Industrial Court that sexual harassment constitutes a form of detriment and disadvantage to the person to whom it is directed and falls within the provision of section 9(c) of the Equal Opportunity Act of Trinidad and Tobago, Chap 22:03.[2]
It is clear then that employers have an overarching responsibility to ensure that the workplace is not just functional, but safe, respectful, and free from sexual harassment. Failing to uphold this duty exposes employees to harm and leaves the employer open to serious legal consequences.
While employers are not under a direct legal duty in Trinidad and Tobago to report workplace sexual harassment to the Trinidad and Tobago Police Service, it is important to recognize the overlap with criminal law, as employees retain the right to escalate such matters to the criminal law arena.
What Employers must do?
Every employer, regardless of the size of the organisation, must take all reasonable steps to prevent and treat with sexual harassment in the workplace. Employers and managers must make it clear to every employee and workplace participant that sexual harassment is unacceptable and adopt a zero-tolerance policy for sexual harassment in the workplace.
There are two (2) main actions that employers must take to deter complaints of sexual harassment in the workplace[3]:
- An employer should have a sexual harassment policy, communicating it to each workplace participant, ensuring that it is understood and implementing it as fully as possible.
Dissemination of policies and mechanisms for the prevention of harassment to all employees and supervisors are equally important. In order to meet the communication needs, employers must additionally, provide a programme whereby employees and supervisors can be educated about harassment.
b. If sexual harassment does occur, the employer should take appropriate remedial action for dealing with a complaint once it is made.
Any type of harassment, of one worker by another, including sexual harassment, is misconduct and should be addressed with disciplinary punishment. However, the Industrial Court has made it clear that the ultimate sanction of dismissal should not be automatic.[4] The principles of good industrial relations practices and natural justice must still apply to the aggressor. Further, any action taken should be comparative to the gravity of the sexual harassment and consistent within the organisation, regardless of the sex of the perpetrator.
It must not be forgotten that retaliation against persons who have made a sexual harassment complaint is an unfortunate reality. As a preventative measure, employers must ensure that the investigation and grievances are handled in a manner that guarantees that the identities of the persons involved and all records relating to the harassment complaint are kept confidential. Additionally, employers must also be aware that disciplinary action can and should be taken in response to any employee who has retaliated against or victimised another employee who has made a sexual harassment allegation.
Conclusion
As an employer, a great deal of detail must be poured into your company’s preventative measures against sexual harassment and your company’s response mechanisms to complaints. Should you as an employer fail at any of these steps, you might just find yourself at the doorstep of the Industrial Court, the Equal Opportunities Commission or the High Court of Justice.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Persons affected by sexual harassment or related misconduct are encouraged to seek assistance from a qualified attorney-at-law or the appropriate authorities for guidance on their specific circumstances.
#WorkplaceHarassment
#EndSexualHarassment
#SafeWorkplace
#RespectAtWork
#EmployeeRights
#EmployerResponsibility
#OccupationalHealthAndSafety
#EqualOpportunity
#IndustrialRelations
#ZeroTolerancePolicy
#LegalAwarenessTT
#TrinidadLaw
[1] International Labour Organisation (ILO) Convention (No.111) 1958 on Discrimination in Respect of Employment.
[2] Civil Appeal No. P407 of 2019 Civil Appeal No. P408 of 2019 E.O.T. 0001 of 2017 Equal Opportunity Commission v Cascadia Hotel Ltd and Rishi Persad Maharaj v Cascadia Hotel Limited.
[3] The Equal Opportunity Commission of Trinidad and Tobago, Guidelines on Sexual Harassment in the Workplace, 2018 accessed at <https://equalopportunity.gov.tt/downloads/publications/Guidlines_Sexual%20Harrassment_in_the_workplace.pdf>
[4] Trade Dispute No.17 1995 between Bank Employees’ Union and Republic Bank Limited.