Article 10 of Convention No. 190 includes a number of measures based on existing practice at the national level that each country could implement or strengthen based on national circumstances. To proactively enable and encourage reporting of violence and harassment, and to effectively respond to such complaints, Convention No. 190 and Recommendation No. 206 state principles that should be ensured irrespective of the concrete procedure enacted at the national or workplace level, as explained below.
6.1.1. Ensuring easy access, safety, fairness and effectiveness
Complaint mechanisms can be either internal (within an enterprise) or external (through the Ministry of Labour or other relevant ministries, court systems, sectoral or collective mechanisms, specialized tribunals or courts, labour inspectorates, dispute resolution agencies, human rights and equality bodies, or other quasi-judicial bodies).
Regardless of the specific mechanism, Convention No. 190 and Recommendation No. 206 state that all these channels should be easily accessible, safe, fair and effective. <sup>33</sup>
Internal complaint mechanisms are often foreseen by labour legislation, including OSH regulations, and by collective agreements, and may require the complaint to be taken by the supervisor, or where the supervisor is the alleged perpetrator, by another person.
Box 24. Ensuring access to justice at the workplace level
Recently, steps have been taken in several countries to include specific procedures in case of violence and harassment, including by setting up dedicated internal committees or by providing anonymous reporting.
Gabon: Article 6 of the Law on the Fight against Harassment in the Workplace, 2016, provides, “The employee, the civil servant or the trainee who considers to be a victim of moral or sexual harassment may inform, under confidential cover, staff representatives, the employer, the general inspection services or the labour inspection services.” Article 8 further specifies, “Staff representatives and union delegates in a company as well as the trade union organizations in the public sector have a right to be whistle-blowers.”
Mexico: In March 2020, the Secretariat of Labour and Social Welfare issued a model protocol to address and eradicate work violence (Mexico 2020). This model protocol defines the procedures or mechanisms to provide assistance to alleged victims of workplace violence, to identify the competent bodies that may provide support on these issues, and to promote an organizational culture of gender equality and a work environment that helps eliminate workplace violence. The model protocol includes protection and conduct modification measures to avoid re-victimization and to help reduce incidences of violence. It also foresees the creation of an “Attention and Follow-Up Committee”, which is an internal committee with company and employee representatives authorized to assist and monitor the application of the protocol.
Panama: According to the 2018 Anti-Discrimination Law, every employer, public and private institution and educational establishment, must implement internal procedures for individuals to bring harassment claims and for the resolution of such claims. Pursuant to the Law, these proceedings must be adequate and effective to allow for the swift resolution of claims, while also ensuring confidentiality and giving appropriate protection to the plaintiff and witnesses.
Peru: In July 2019, Peru introduced a legislation requiring employers to set up a Sexual Harassment Committee or Delegate, depending on the size of the employer. 34 Workplaces with 20 or more employees must ensure they introduce an Intervention against Sexual Harassment Committee. In workplaces with fewer than 20 employees, an anti-sexual harassment delegate will assume the role of the Intervention Committee. If an incident of sexual harassment involves an outsourcing or intermediation company, the complaint should be filed with the main company or user, which must carry out the investigation procedure through its Intervention against Sexual Harassment Committee. The investigation procedure can be initiated by an involved party, at the request of the victim or a third party, or ex officio.
United Kingdom: According to technical guidance issued by the Equality and Human Rights Commission in 2020, employers should consider setting up reporting systems that will allow for anonymous reports. By being anonymous, such systems could: capture complaints that would otherwise go unreported; encourage complainants to come forward; and allow some form of action even if a full investigation is not possible. In addition, the Guidelines also recommend employers to make sure there are trained workers who can support a complainant through the process of making a complaint. These could be members of the human resources team or may be nominated “guardians” (United Kingdom 2020).
Saudi Arabia: According to the 2018 Anti-Harassment Law, all organizations in the public and private sector are under an obligation to take steps to prevent harassment from occurring. Employers are required to put in place an internal complaints mechanism and procedure that deals with matters confidentially, take remedial action for any breaches of the law, and not prevent or replace a victim’s right to separately raise a complaint to the competent authorities.
Social partner and business-led initiatives
Argentina: The Asociación Bancaria adopted a protocol against Workplace Violence, Gender Violence and Gender-based Workplace Violence for the Banco de la Nación Argentina. The Protocol establishes an internal procedure to handle such cases, including instances of gender-based violence against LGBTIQ+ people. It includes specific reference to cyberbullying and also provides for ten days leave to victims of domestic violence (Banco Nación 2020).
Bangladesh: The Accord on Fire and Building Safety in Bangladesh is a legally binding agreement between global brands, retailers and trade unions to improve safety in the garment and textile industry. The Accord provides workers with an independent grievance mechanism through which they can confidentially raise concerns about issues, including workplace violence, and be protected against retaliation.
Lesotho: An independent grievance mechanism has been created to tackle sexual harassment in Lesotho’s textile factories. The oversight body has the power to investigate claims and compel factories to discipline or dismiss offenders (Abimourched et al. 2019).
Singapore: Tripartite partners have come together to develop the Tripartite Advisory on Managing Workplace Harassment, which serves as a practical guide for employers and employees to better prevent and manage harassment in the workplace. The Advisory emphasizes the importance of proactive management and focuses on preventive measures to ensure a safe and conducive workplace. It also suggests key steps and remedial actions that employers and affected persons can take in responding to harassment when it occurs (Singapore 2015).
Conciliation, mediation and arbitration may also be available or required when a complaint is lodged either internally (through dispute resolution or grievance procedures under collective agreements) or externally (through in-court conciliation, extrajudicial conciliation through autonomous procedures, or by public administration systems). Practice has shown that different approaches focusing more on generating an attentive and responsive dialogue by hearing both parties’ voices, seem to overcome the adversarial nature of legalistic models, increase complainant satisfaction, and reduce retaliation (Dobbin and Kalev 2020).
Box 25. Violence and harassment and non-disclosure agreements
In some jurisdictions, an increasing number of provisions aim at overcoming the practice to include disputes related to violence and harassment – and in particular gender-based violence and harassment and discrimination – within the scope of non-disclosure agreements (NDAs). These NDAs typically include, among other things, confidentiality and mutual non-disparagement provisions, which prevent the parties from discussing the terms of the settlement as well as the circumstances surrounding the settlement. Following several high-profile scandals, some countries have taken measures to make sure that NDAs are not used to silence victims or whistle-blowers, irrespective of their contractual status, who allege any misconduct, particularly sexual harassment and other forms of discrimination-based harassment. In this regard, Article 10(c) of Convention No. 190 states that ratifying States should “ensure that requirements for privacy and confidentiality are not misused” (ILO 2019c, para. 828).
For instance, in 2020, the United Kingdom’s arbitration service Acas has advised firms and workers against using NDAs to prevent someone from reporting sexual harassment, discrimination or whistle blowing at work (Acas 2020). In the United States, provisions have been introduced in many states to prevent the misuse of NDAs. For instance, in New Jersey, employers can no longer enforce NDAs relating to discrimination, harassment and retaliation claims against current or former employees under a law that became effective in March 2019 (Avallone and Meade 2019).
In the same year, New York State adopted regulations stating that a worker cannot be bound by any agreement signed after 11 October 2019 that prohibits the worker from disclosing harassment facts or settlement of a claim of harassment on any protected category basis unless that is the worker’s preference. 35
In recent years, many countries have embarked on legislative reforms to ensure that external complaint mechanisms for cases of violence and harassment in the world of work are safe, easy to access and provide timely processing, particularly in cases involving discrimination-based behaviours.
Box 26. Strengthening reporting and dispute resolution mechanisms external to the workplace
Brazil: In 2017 the Government enacted Ordinance No. 583, establishing the National Policy for Preventing and Confronting Moral and Sexual Harassment and Discrimination within the scope of the Labour Prosecution Office´s mandate.
Canada: Under the 2019 Accessible Canada Act, individuals can file an accessibility complaint if they have experienced physical or psychological harm, property damage or financial loss. The Federal Public Sector Labour Relations and Employment Board will deal with complaints related to accessibility for most federal public servants and parliamentary employees through the grievance process.
CostaRica: Legislative Decree No. 9343/2015 on reforming labour procedures and amending the Labour Code established a fast-track procedure for situations of labour discrimination suffered by vulnerable populations, including migrants and refugees.
Gabon: Article 9 of the Law on the Fight against Harassment in the Workplace, 2016, states, “Any representative trade union organization or any legally declared association may, with the written agreement of the employee, bring any action on his/her behalf before the competent authorities or courts.”
India: The Sexual Harassment Electronic Box (SHe-Box) is an effort of the Government of India to provide single window access to facilitate registration of complaints related to sexual harassment (in accordance with the Protection of Women from Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013). Once a complaint is submitted, it is directly sent to the concerned authority having jurisdiction to take action. Any woman can use the SHe-Box, irrespective of her work status, or whether she is working in an organized or unorganized business or in the private or public sector. The resources section of the SHe-Box contains detailed information on the issue of sexual harassment of women in the workplace. This includes a user-friendly Handbook on the Sexual Harassment Act and a training module to build the capacity of government officials (India, n.d.).
In relation to gender-based violence and harassment, Convention No. 190 provides that complaint and dispute resolution mechanisms should be “gender-responsive” (Art. 10(e)). This includes, for instance, designing and ensuring that judicial and non-judicial mechanisms are responsive to the barriers faced by victims of gender-based violence and harassment in seeking effective remedies and in reducing the harmful effects of such prohibited behaviours. Recommendation No. 206 offers further guidance, by recommending that courts be equipped with the necessary expertise and legal advice (Para. 16(a)-(c)); that assistance for complainants and victims, as well as guides and other information resources be provided (Para. 16(c)–(d)); and that the burden of proof be shifted, as appropriate, in proceedings other than criminal ones (Para. 16(e)).
Box 27. Gender-responsive reporting and dispute resolution mechanisms: Some examples
Djibouti: Following an amendment in 2018, article 4-quater of the Labour Code provides that, in case of any dispute related to harassment, including sexual harassment, the burden of proof is shifted. In particular, when the employee presents evidence suggesting the existence of harassment, “it is up to the defendant to prove that these acts do not constitute such harassment and that their decision is justified by objective elements unrelated to any harassment. The judge shall form his or her opinion after ordering, if necessary, all the investigative measures he or she deems useful.”
Gabon: Article 7 of the Law on the Fight against Harassment in the Workplace, 2016, provides, “The burden of proof of the facts constituting moral or sexual harassment lies with the victim. It is then up to the defendant to prove that these actions do not constitute harassment.”
North Macedonia: Article 33 of the 2006 Law on Equal Opportunities for Women and Men, as amended in 2015, provides, “(1) The person who considers that the right to equal treatment has been violated on the grounds of gender may file a lawsuit with a competent court. … (3) The procedure shall be urgent.” Article 34 addresses which court will have competence in the matter, stating: “In the procedure for the protection of the right to equal treatment on the grounds of gender, the court where the permanent place of residence of the plaintiff is located shall be locally competent, besides the court of local competence.”
Philippines: The 2018 Safe Spaces Act requires employers to create an independent internal mechanism to investigate and address complaints of gender-based sexual harassment which shall adequately represent the management, the employees from the supervisory rank, the rank-and-file employees, and the union, if any; and have a woman as its head and not less than half of its members should be women (sect. 17).
UnitedStates(NewYorkState): As of 11 October 2019, the standard for proving a harassment claim has been significantly eased, and a worker no longer has to prove that the harassment was “severe or pervasive” or that a comparator was treated better or that they filed a complaint internally (Zweig and Davidoff 2019).
6.1.2. Protection before, during and after reporting or making a complaint
Convention No. 190 recognizes the right of workers to remove themselves from a work situation which they have reasonable justification to believe presents an imminent and serious danger to life, health or safety due to violence and harassment. Additionally, workers should be able to exercise this right without suffering retaliation or other undue consequences, while having a duty to inform their employers (Art. 10(g)). 36 This protection is found in relevant OSH standards. In particular, Article 13 of the Occupational Safety and Health Convention, 1981 (No. 155), which states, “A worker who has removed himself from a work situation which he has reasonable justification to believe presents an imminent and serious danger to his life or health shall be protected from undue consequences in accordance with national conditions and practice.”
Throughout the reporting, investigation and dispute resolution process, Convention No. 190 calls for the protection of privacy and confidentiality, to the extent possible and as appropriate (Art. 10(c)). The confidentiality of complaints is essential to protecting the privacy of both the complainant and the alleged perpetrator. However, privacy and confidentiality should not impede an investigation. Related to this, ratifying States are also to “ensure that requirements for privacy and confidentiality are not misused” (Art. 10(c)).
Box 28. Ensuring privacy and confidentiality, and the right to remove oneself from a harmful situation
Luxembourg: Article L.245-6(2) of the Labour Code, as amended in 2016, states, “The staff delegation, and the equality representative, if there is one, are empowered to assist and advise the employee who is the subject of sexual harassment. They are required to respect the confidentiality of the facts of which they are aware in this respect, except to be exempted from it by the harassed person.”
Saudi Arabia: Article 4 of the 2018 Anti-Harassment Law provides, “Any person who has access – by virtue of their work – to information about any instance of harassment is required to maintain the confidentialityof such information. The identity of the victim may not be revealed except when required by evidentiary procedures, the investigation or trial.”
South Sudan: Article 7 of the 2017 Labour Act requires that the workplace policies include specific provisions on the fact that “the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto”.
United Kingdom: The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 confers on workers, and not only employees, the right not be subjected to a detriment for leaving, or refusing to return, to their workplace in circumstances where they reasonably believe it would put themselves or others in serious or imminent danger, or for taking steps to protect themselves.
Convention No. 190 also protects against any forms of victimization or retaliation against complainants, victims, witnesses and whistle-blowers (Art. 10(b)(iv)). Protecting complainants from retaliatory actions is a fundamental part of safe and effective reporting, complaint procedures and dispute resolution mechanisms.
Box 29. Protecting against victimization and retaliation
Côte d’Ivoire: Article 5 of the 2015 Employment Code provides that no employee, person in training or in internship may be punished, dismissed or bore undue consequences in relation to matters relating to employment, including recruitment and other terms and conditions, for refusing to undergo the acts of moral or sexual harassment as well as for having testified to or reported such acts.
Italy: According to paragraph 3-bis of the Code of Equal Opportunities, as amended in 2018, the employer may not victimize workers who lodge a claim to request ascertainment of discrimination or of sexual harassment because of this. Victimization refers to the adoption of disciplinary sanctions, changes in job descriptions, dismissals and transfers with direct or indirect negative occupational effects. Such protection shall not be awarded in case the claimant has been convicted.
Lebanon: In 2020, Lebanon passed the Law to Criminalize Sexual Harassment and [for] Rehabilitation of Its Victims. This law provides protection of victims from retaliation, including in pay, promotion, transfer, contract renewal or disciplinary measures. The law contains whistle-blower protections and prohibits discrimination, abuse or disciplinary measures against people who report harassment or testify about the abuse. Such retaliation can be punished by up to six months in prison and a fine of 20 times the minimum wage.
Luxembourg: Article L. 245-5 of the Labour Code, as amended in 2016, provides:
- The employee may not be the subject of reprisals because of his protests or refusals against an act or behaviour of sexual harassment on the part of his employer or any other hierarchical superior, co workers or external persons in relationship with the employer.
- Likewise, no employee may be the subject of reprisals for having testified to the acts defined in article L. 245-2 or for having reported them.
- Any provision or act contrary to the two preceding paragraphs, and in particular any termination of the employment contract in violation of these provisions, is automatically void.
Gabon: Article 4 of the 2016 Law on the Fight against Harassment in the Workplace provides that:
No employee, civil servant, nor any person in training or in internship may be sanctioned, dismissed or subject to a discriminatory measure, either direct or indirect, in particular in relation to remuneration, training, performance review, assignment, qualification, classification, professional promotion, transfer or renewal of contract for having suffered or refused to undergo repeated acts constituting moral or sexual harassment or for having given testimony or statements against such acts.
Niger: Article 122 of Decree No. 2017-682/PRN/MET/PS in regulation of the Labour Code (10 August 2017) states as follows: “No worker may be punished, or subjected to discrimination for having been a witness to acts of sexual harassment or for reporting them.”
Portugal: The Labour Code, as amended in 2017, strengthens protections against victimization and dismissal to victims and witnesses of harassment practices. In particular, article 29(6) prevents the application of disciplinary sanctions against complainants or victims and witnesses, unless they acted with wilful misconduct, taking into account the circumstances mentioned in the proceedings triggered by sexual harassment or mobbing, until its final judgement with res judicata, regardless of the right to adversarial proceedings.
Republic of Korea: The 2018 law on workplace bullying includes penalties for employers who retaliate against any workers for reporting workplace bullying and harassment.
South Sudan: Article 7 of the 2017 Labour Act provides that the workplace policy includes protection against retaliation and, in particular, “that an employee who brings a complaint of sexual harassment in good faith shall not be disciplined, demoted, dismissed or otherwise prejudiced in such employee’s employment with the employer as a consequence”.
6.1.3. Support services
Among the possible measures to enable effective reporting and dispute resolution mechanisms and procedures, Convention No. 190 mentions “legal, social, medical and administrative support measures to complainants and victims” (Art. 10(b)(v)). Support services should be gender-responsive, particularly in case of gender-based violence and harassment (Art. 10(e)). In this regard, Recommendation No. 206 recommends:
The support, services and remedies for victims of gender-based violence and harassment referred to in Article 10(e) of the Convention should include measures such as:
- support to help victims re-enter the labour market;
- counselling and information services, in an accessible manner as appropriate;
- 24-hour hotlines;
- emergency services;
- medical care and treatment and psychological support;
- crisis centres, including shelters; and
- specialized police units or specially trained officers to support victims (Para. 17).
Box 30. Examples of legislation and regulations providing protection and support to victims
Argentina: The programme “Acompañar” provides support to persons at risk of gender-based violence. It seeks to promote the economic autonomy of women and LGBTQI+ persons by providing economic support and contributing to strengthen the network of support services for these persons to cover basic expenses in organizing and developing an autonomous and free project of life (Argentina, Ministry of Justice and Human Rights 2020).
Burkina Faso: The 2015 Law on Preventing, Punishing and Repairing Violence against Women and Girls and Caring for Victims provides that “before the competent courts, the victim, if she does not have the means to procure a lawyer, istobeassistedbyacourt-appointedlawyer. They can also be represented by a person of their choice or by an approved human rights defence association, in case of emergency or in case of extreme vulnerability found medically” (art. 21).
Italy: In January 2021 the Constitutional Court ruled that all victims of gender- based violence and harassment are entitled to free legal aid and assistance (Giurisprudenza Penale 2021).
NorthMacedonia: The 2006 Law on Equal Opportunities for Women and Men, as amended in 2015, provides that “the person filing the complaint shall be exempted from payment of administrative fee and another charge” (art. 22(6)).
Peru: The Ministry of Labour (via Supreme Decree N° 014-2019-TR) created the programme “Trabaja sin acoso” (“Work without Harassment”), whose objective is to intervene in a timely and adequate manner for the protection of victims of sexual harassment at work. The service includes orientation to victims, including legal assistance, as well as legal advice during the internal procedures of investigation and punishment of sexual harassment and in judicial processes that seek to protect and repair the affected labour rights. The programme also offers psychological assistance to victims.
6.1.4. Appropriate and effective remedies
Article 10 of Convention No. 190 requires ratifying States to ensure appropriate and effective remedies. In this regard, Recommendation No. 206 recommends that remedies could include:
- the right to resign with compensation;
- reinstatement;
- appropriate compensation for damages;
- orders requiring measures with immediate executory force to be taken to ensure that certain conduct is stopped or that policies or practices are changed; and
- legal fees and costs according to national law and practice (Para. 14).
By requiring appropriate and effective remedies, Convention No. 190 and Recommendation No. 206 call for effective enforcement of legal rights and redress, which, when appropriate and possible, could provide restitution and relief to the person whose rights have been infringed, and could have a dissuasive effect on potential perpetrators. These effective remedies depend on a variety of factors, including the severity of the conduct and the legal pathways chosen by the plaintiff in each legal system. The explicit reference to “reinstatement” as well as to “orders requiring … that certain conduct is stopped or that policies or practices are changed” highlights that, in case of violence and harassment, monetary damages may be inadequate to fix the harm. 37
Within the context of the effective remedies provided for by Convention No. 190 and Recommendation No. 206, the importance of employment injury benefits for victims of violence and harassment at work is also recognized. In particular, Recommendation No. 206 recommends that “victims of violence and harassment in the world of work should have access to compensation in cases of psychosocial, physical or any other injury or illness which results in incapacity to work” (Para. 15). Physical injury and some mental disorders are compensable injuries under employment injury insurance and workers’ compensation schemes if the event triggering the injury or illness arises out of and/or in the course of employment. Such schemes ensure access to necessary medical care as well as counselling, rehabilitation and reintegration for affected workers. These schemes also provide cash benefits to victims and their families (in case of death), which prevent them from falling into poverty and social exclusion due to loss of income, loss of earning capacity and income support, as the case may be (Chappell and Di Martino 2006; Lippel 2016; ILO 2018g).
Box 31. Remedies in case of violence and harassment at work: Recent exeples
Denmark: Sexual harassment and violence at work are included in and compensated under employment injury insurance and are overseen by the Labour Inspectorate, part of the Danish Working Environment Authority (Eurofound 2015).
Canada: Violence and harassment at work are fully integrated in the workers’ compensation schemes of a number of provinces and territories (such as, Quebec, Saskatchewan and Ontario) and give rise to a range of benefits provided in case of employment injury. 38
Germany, in 2017, adopted the Network Enforcement Act (NetzDG), which imposes a duty on host providers to delete harassing messages published by third parties on their platforms upon notification. Providers must comply within 24 hours after receiving a user complaint if the content is “clearly illegal”, otherwise, they have seven days to comply. Noncompliance results in fines. The requirement applies only to networks that have 2 million or more registered users in Germany.
Peru, in 2019, enacted the Law to prevent, punish and eradicate violence against women in private and public spaces. Article 11 foresees that:
When the victim is an employee, the following rights should be guaranteed:
- protection against dismissal for causes related to such acts of violence;
- to change workplace without detriment to their conditions and terms of employment;
- five days of justified absence;
- suspension of the employment relationship, and the right to return to the same or similar position afterwards.
Portugal: The Labour Code, as amended in 2017, provides that the employer is responsible for the compensation for damages arising from occupational diseases resulting from the practice of sexual harassment or mobbing (art. 283(8)). Article 283(9) states, “The responsibility for the payment of compensation for damages arising from occupational disease provided for in the previous number is social security, under the terms legally established, which is subrogated to the rights of the worker, in proportion to the payments made, plus interest for late maturity.”
PuertoRico(UnitedStates): Act No. 83-2019 provides for 15 days leaveincaseofsexual harassment at work.
United States (New York State): As of 11 October 2019, a worker prevailing on a harassment claim shall, by law, recover reasonable attorney fees from an employer and may recover punitive damages as well as economic and compensatory (emotional injury) damages (Zweig 2020).
Republic of Korea: The Industrial Accident Compensation Insurance Act, as amended in 2018, includes the following definition of “occupational illness”: “illness caused by work-relatedmentaldistress due to harassment in the workplace, such as verbal abuse by customers/clients, etc.” (Collins, Ornstein, and Tucker 2019).
Romania: Article 26 of Law No. 202 of 2002 on equal opportunities and equal treatment for women and men, as amended in 2015 and 2018, states:
Whenever it finds that there has been an act of moral harassment in the workplace, the court may, under the law:
- order the employer to take all necessary measures to stop any acts or acts of moral harassment in the workplace in respect of the employee concerned;
- order the reintegration into the workplace of the employee concerned;
- order the employer to pay compensation to the employee in the amount equal to the equivalent of the wage entitlements which he has been deprived of;
- order the employer to pay the employee compensatory and moral damages;
- order the employer to pay the employee the amount necessary for the psychological counselling that the employee needs, for a reasonable period determined by the occupational health practitioner;
- order the employer to change the employee’s disciplinary records.
Slovenia: Article 8 of the 2013 Employment Relationships Act provides:
[I]n the event of a breach of the prohibition of discrimination or harassment in the workplace, the employer is liable to the candidate or employee for damages under the general rules of civil law. Non-pecuniary damage caused to a candidate or employee also considers mental pain. … When assessing the amount of monetary compensation for non-pecuniary damage, it must be taken into account that it is effective and proportionate to the damage suffered by the candidate or employee and that it discourages the employer from repeated violations.
6.1.5. Sanctions
Article 10(d) of Convention No. 190 states that ratifying countries should “provide for sanctions, where appropriate, in cases of violence and harassment in the world of work”. Sanctions refer to consequences for ill-behaviour, and their nature depend on the circumstances, on the behaviour being punished, and on the specific jurisdiction in which the complaint or claim is lodged or the legal pathway chosen. Sanctions may therefore refer to both disciplinary measures, and other civil, administrative or criminal sanctions, where appropriate. Recommendation No. 206 further specifies, “Perpetrators of violence and harassment in the world of work should be held accountable and provided counselling or other measures, where appropriate, with a view to preventing the reoccurrence of violence and harassment, and facilitating their reintegration into work, where appropriate” (Para. 19).
Box 32. Sanctions in case of violence and harassment at work: Recent examples
Bahrain: Article 192 of the Labour Law, as amended in 2018, states:
Any worker who commits sexual harassment against another worker, during work or because of it, by reference, speech, act or by any other means, shall be liable for a prison sentence for a period not exceeding one year or a fine of no more than one hundred Bahrain dinars. If the perpetrator is a supervisor or a representative of a supervisor, he or she shall be liable for a prison sentence for at least six months period or a fine of no less than five hundred Bahrain dinars and not exceeding one thousand Bahrain dinars or by either penalty, and not exceeding one thousand Bahrain dinars or by either penalty.
Philippines: Section 19 of the 2018 Safe Spaces Act foresees fines in case of non- compliance with provisions related to employers’ preventive duties or in case of not taking action on reported acts of gender-based sexual harassment committed in the workplace.
Gabon: The 2016 Law on the Fight against Harassment in the Workplace states that “without prejudice to the criminal sanctions provided for by the applicable legislation, any perpetrator of moral or sexual harassment in the location of work or during work, incurs major disciplinary sanctions pursuant to applicable laws” (art. 10).
Iraq: The 2015 Labour Law states, “Shall be punished by imprisonment for a period not exceeding six months and a fine not exceeding one million dinars or by any of the two sanctions, whoever violates the provisions of the articles contained in this chapter relating to child labour, discrimination, forced labour and sexual harassment, as the case may be” (art. 11-2).
Romania: Article 26 of Law No. 202 of 2002 on equal opportunities and equal treatment for women and men, as amended in 2015 and 2018, provides for a fine in case an employer does not comply with the measures ordered by the court in a judgment related to violence and harassment.
33 As a group of experts who contributed to the development of the ILO Examination of Grievances Recommendation, 1967 (No. 130) argued, “Fair and effective procedures … which provide for an orderly outlet for grievances constitute a safety-valve which helps to prevent the outburst of serious disputes. Moreover, such procedures can contribute to a climate of mutual confidence between management and workers which is so necessary in labour-management relations” (ILO 1964, para. 39). Although, to date no single ILO instrument provides broad and comprehensive guiding principles for effective labour dispute resolution systems, some guidance and principles concerning individual labour disputes are spread throughout various instruments, including the ILO Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), and the ILO Examination of Grievances Recommendation, 1967 (No. 130). More recently, the Indigenous and Tribal Peoples Convention, 1989 (No. 169), provides that the peoples concerned “shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights” (Art. 12). The Domestic Workers Convention, 2011 (No. 189), mandates to “take measures to ensure … that all domestic workers, either by themselves or through a representative, have effective access to courts, tribunals or other dispute resolution mechanisms under conditions that are not less favourable than those available to workers generally” (Art. 16). Ensuring “effective access to justice” is also one of the policies recommended by the Transition from the Informal to the Formal Economy Recommendation, 2015 (No. 204). In general, and for a comparative analysis on this topic, see Ebisui, Cooney, and Fenwick 2016; ILO 2018f, ILO 2013.
34 Supreme Decree N° 014-2019-MIMP
35 If it is the worker’s preference, then a three-step process must be followed: 1. the nondisclosure term must be written in an agreement in plain English and, if applicable, the worker’s primary language as well; 2. the worker must be given at least 21 days to consider the non-disclosure term and seven days after signing to revoke consent; and 3. after the expiration of the revocation period, the worker and the employer must enter into a second agreement that includes the nondisclosure term and any other terms resolving the harassment claim (Zweig 2020).
36 It is worth mentioning the particular case of those workers, particularly migrant workers, who might have greater difficulty leaving a harmful situation, either because their visas are tied to their employers, who could cancel it at any time, or because they would lose their shelter as well as their job (see ILO 2021c). Naturally, migrant domestic workers who live with their employers are the most vulnerable in that respect. In this regard, Paragraph 7 of the Domestic Workers Recommendation, 2011 (No. 201), suggests: “Members should consider establishing mechanisms to protect domestic workers from abuse, harassment and violence, such as: (a) establishing accessible complaint mechanisms for domestic workers to report cases of abuse, harassment and violence; (b) ensuring that all complaints of abuse, harassment and violence are investigated, and prosecuted, as appropriate; and (c) establishing programmes for the relocation from the household and rehabilitation of domestic workers subjected to abuse, harassment and violence, including the provision of temporary accommodation and health care”.
37 The importance of adequate remedies has been stressed regularly by the CEACR, including the need to grant reinstatement where appropriate; see ILO 2012; 1996. For instance, the CEACR considers that in the “context of protection against victimization, where someone has been dismissed due to raising a complaint, reinstatement is normally the most appropriate remedy” (ILO 2017a, para. 328).
38 For more information, see: Association of Workers’ Compensation Boards of Canada, “Boards/Commissions”.