What small businesses should know about the new Sexual Harassment Act
THE Sexual Harassment (Protection and Prevention) Act, 2021, which came into effect on July 3, 2023 was not designed for small or micro businesses.
There are three primary indicators that the law was not intended for small employers. Firstly, there is the obligation on all employers to have a sexual harassment policy within 12 months. In the early drafts of the law, back in 2015, employers with fewer than 20 workers were exempt from this obligation. In Jamaica, we define “micro businesses” as those with fewer than five employees, and “small businesses” as those with 6-20 employees. That exemption for businesses with fewer than 20 employees was removed from the 2019 Sexual Harassment Bill and the version of the law that was passed by Parliament in 2021. Many expected that a size-based exemption to having a sexual harassment policy would be done by executive order from the minister of culture, gender, entertainment and sport, but that has not yet occurred. Instead, the Act includes a template for a sexual harassment policy.
The second indicator that the law is not focused on sole traders and household employers is that the template for the sexual harassment policy uses the word “organisation” throughout, rather than “employer”, which is the term that is defined in the Act. An employer is anyone who engages a worker — regardless of the form of engagement. A worker is anyone who carries out work in any capacity for an employer. This includes domestic helpers and day workers — whether hired directly or through an employment agency — casual workers, trainees, interns, and volunteers. Therefore, if you have anyone working for you — paid or unpaid, whether in your home or your workplace, whether full-time or part-time, whether employee or contract worker — you are legally required to have a sexual harassment policy before July 3, 2024, unless the minister of culture, gender, entertainment and sport exempts you before then.
Ostensibly, any individual employer could insert their name in the policy template wherever “insert name of organisation” appears in the document. How would that individual employer be able to properly complete the other required blanks, such as the space where you state the role of the HR department, the welfare officer, or the Anti-Sexual Harassment Dispute Resolution Committee? Another section to be completed in the policy template is how the Anti-Sexual Harassment Dispute Resolution Committee ought to deal with complaints. This document is hardly useful to the small and micro businesses and household employers who need it the most.
Thirdly, the Act has many other obligations that cannot be discharged by a small business or household employer without incurring liability for failure to follow due process. A prime example is the obligation to start an investigation into complaints of sexual harassment within 14 days and to complete that investigation without delay. There is also an obligation to say that you will take disciplinary measures against any worker who sexually harasses a co-worker or client. But there are many decisions from the Industrial Disputes Tribunal (IDT) which say that if an employer investigates disciplinary allegations, it cannot also carry out discipline as it would then be “judge, jury and executioner” or “acting as a judge in its own cause”. In a well known case the IDT said that the disciplinary process should be managed by persons who are “certainly not a part of the institution which is making the accusation or bringing the charges against the accused”.
In a recent IDT decision, a manager who was dismissed for requesting sexual favours of his direct report via a series of direct messages, was awarded over $8 million largely because the person who signed the letter charging with him sexual harassment was also the person whose name appeared on the dismissal letter. Compliance with the sexual harassment law is bound to bring small businesses into conflict with the labour law.
Notwithstanding the obligation to say that they will take disciplinary measures against sexual harassers in their employ, small businesses and household employers who do not have HR departments may prefer to advise employees to take their complaints directly to the Sexual Harassment Tribunal. The Act permits direct complaints to the Sexual Harassment Tribunal, which has much greater capacity, training, and resources to thoroughly investigate complaints. Presently there is no penalty in the Act if an employer does not investigate a complaint or take disciplinary action. In contrast, there could be substantial financial and reputational risk if the small business tries to do both.
But to those employers who do have the size or resources to create or update their sexual harassment policies, now is the time to do so and to start your own sensitisation efforts on the new law.
Gavin Goffe is a partner at Myers, Fletcher and Gordon, and is the head of the firm’s Litigation Department. He may be contacted at email@example.com or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.