The Sexual Harassment (Protection and Prevention) Act (“The Act”) was passed by the Jamaican Parliament in 2021. The Act came into force in July 2023 giving employers one year to comply with the provisions of the Act which require, among other things, the preparation and publication of a sexual harassment policy. The policy prescribed by the act requires all employers to set out the definition of sexual harassment, examples of forms of sexual harassment and to name a designated officer to whom complaints of sexual harassment in the workplace are to be made. The act also requires the employer to set out in the sexual harassment policy such internal mechanisms that will be implemented to deal with complaints. While the Act addresses the very serious issue of sexual harassment it is not without some difficulties as employers may now be experiencing.

Our micro, small and medium enterprise clients (MSMEs) should be alert to the fact that the Act governs them as well even if they have only one single employee. We understand that MSMEs may need some guidance in preparing their policy statement. While the Act provides some guidance in the First Schedule, it stops short of setting out specific proposals as to how an organization should pursue and investigate a complaint of sexual harassment. The Act provides that the designated officer who receives complaints, must first make a determination that there is merit to a complaint. Once this determination is made, the designated officer may then carry out the set of actions that are consistent with the internal provisions that the organization has designed to treat with these issues. It means therefore, that employers are required to design internal procedures for dealing with complaints of sexual harassment.

The Act further provides that the designated officer may engage in a process to achieve a mutually agreed resolution. This means that while the designated officer receives complaints and must make a determination as to whether a complaint is meritorious, the officer is also empowered to act in a mediating role seeking a consensual resolution between the parties to the dispute. Employers must be very careful about how they engage these two different roles since the possibility of bias in respect of one party to the complaint over the other, as well as bias towards the interests of the employer organization can derail a most important aspect of dealing with any complaint, that is, ensuring fairness and due process.

It is important to note that if the designated officer is unable to achieve consensual resolution, the employer will have a duty to refer the complaint to the Sexual Harassment Tribunal which is constituted under the Act. The Tribunal will then be bound to consider the complaint and make a determination as to whether the person accused of harassment is liable.

The Act also sets out provision for an Anti-Sexual Harassment Dispute Settlement Committee which suggests that dispute settlement is not only undertaken by the designated officer. However, the Act gives no guidance as to the role of this Committee or how this Committee should be constituted. It is important therefore for employers to seek legal advice to determine how to incorporate the role of such a committee in their policy and procedures dealing with sexual harassment complaints.

Finally, GCA encourages all its employer clients to comply with the provisions of the Sexual Harassment Protection and Prevention Act. Talk to us. We are here to support you.