First Published in The Royal Gazette, Legally Speaking, February 2021
A Bill recently passed in the Senate will introduce important changes to the Employment Act 2000 ("the Act"), Bermuda's key piece of employment legislation, with effect from June 1.
The changes are part of Government's intended modernisation of labour and employment law.
This article focuses on the new section 10B which will oblige employers in Bermuda to have a written policy statement against bullying and sexual harassment. This policy is required to contain statements to the effect that:
- every employee is entitled to employment free of bullying and sexual harassment;
- the employer will make every reasonable effort to ensure that no employee is subjected to bullying or sexual harassment; and
- details of bullying and sexual harassment complaints should be kept confidential except as necessary for investigating or taking disciplinary measures.
Further, the policy must explain how complaints can be raised and the measures, including disciplinary action, that may be taken against perpetrators of bullying or sexual harassment. It should also set out details of an employee's right to bring a complaint of sexual harassment under the Human Rights Act 1981.
The employer's policy must also use definitions of "bullying" and "sexual harassment" that are substantially the same as the following definitions used in the Act:
- Bullying: "means the habitual display of offensive behaviour intended to harm, intimidate, humiliate, undermine or coerce a person or group of employees and includes, but is not limited to, ostracising, ridiculing, shouting at, threatening, and verbally abusing a person or group of employees".
- Sexual harassment: "includes any one or more incidences of any of the following: the use of sexually suggestive words, comments, jokes, gestures or actions that annoy, alarm or abuse a person; the initiation of uninvited physical contact with a person; the initiation of unwelcome sexual advances or the requests of sexual favours from a person; asking a person intrusive questions that are of a sexual nature pertaining to that person's private life; transmitting sexually offensive writing or material of any kind; making sexually offensive telephone or internet calls or messages to a person; or any other sexually suggestive conduct in circumstances where a reasonable person would consider the conduct to be offensive".
There are notable elements of these definitions, including:
- bullying requires the "habitual" display of offensive behaviour, suggesting that a single incident would not amount to bullying;
- the test for bullying is met only if the effect of the conduct is intentional;
- it seems that sexual harassment may not require intent; if a reasonable person would consider the conduct to be offensive then it may meet the test, even if the harasser did not intend it as such.
Many employers already have a policy with definitions of these terms. In the case of sexual harassment, the definition may be based on the slightly different definition in the HRA. International groups of companies often design their policy to apply consistently across all countries in which they operate, using definitions which seek to encompass all of the applicable legal obligations in those territories. The requirement to adopt, in substance, the definitions used in the Act could result in these policies needing to be revised.
The aims behind the new law are clearly admirable and, in the main, the prescribed requirements of the employer's policy are unlikely to be controversial.
However, the new provisions do not create any new substantive remedies for employees. Specifically, there is no discrete claim that an employee can bring if subjected to bullying in the workplace, although bullying may give grounds for the employee to resign and claim constructive dismissal.
Further, even if an employee is subject to sexual harassment contrary to the policy, they will only be able to bring a claim before the Human Rights Commission if their treatment satisfies the definition of "sexual harassment" in the HRA.
However, if an employer contravenes the new section 10B they may be subject to a new civil penalty, a fine of up to $5,000 if imposed by the Government's Manager of Labour Relations, or up to $10,000 if imposed by the Employment and Labour Relations Tribunal.
Employers will also be subject to a broad obligation to ensure that "procedures are put in place to assist every employee in understanding the policy". With this in mind, it would be advisable for the policy to set out the expectations on individual staff members, which may vary, for example if they are in a managerial position, and explain how queries can be raised. Employers may also want to consider giving training to employees on bullying and sexual harassment issues.
The new law will raise the profile of bullying and harassment issues in the workplace, even if it doesn't substantively change the remedies available to employees. Employers without a policy will need to create one for the first time and those that do have one are advised to review their existing procedures.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.