Right to work , its realisation in the context of CEDAW

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The Right to Work in ‘Just and Favorable Conditions’: A Discussion of Measures
Toward Realisation of the Elimination of Workplace Sexual Harassment.
* Ingrid Gubbay
Introduction
The right to work is an inalienable right of all human beings1. 'Temporary special
measures' implemented variously at a domestic level as 'affirmative action programmes
or 'positive action' measures aimed at accelerating de facto equality between men and
women in the field of work, have arguably improved women and girls access to work,
training and education2. The proposition is that in the struggle to obtain a fair market
share of global economic growth, women and girls are exchanging their subordinate
positions in the family with junior positions in the workplace: In too many cases
tolerating high levels of sexual violence and other workplace coercion.
A number of surveys covering public and private sector organisations in the UK have
confirmed that sexual harassment in the workplace is a common problem across the
working population3. In 1996 an overall survey found that 54% of organisations said that
cases of sexual harassment had been reported among their employees. There was also a
clear link between the number of complaints and the existence of sexual harassment
policies in the workplace4. A similar situation continues in some sectors today.
A comparative analysis of sex discrimination models for incorporation into prospective
legislation and/or legal interpretation of sexual harassment cases are beyond the scope of
this discussion. It has however been marked as an item for further examination. This
paper will focus on progressive measures that have been instituted toward the elimination
of sexual harassment in the workplace. General Recommendation No. 19 made by the
Committee on Elimination of Discrimination against Women5.(GR19) will be used as a
*The author is a practicing UK Human Rights lawyer, and taught the LLM Human Rights of Women
Course at Essex University 1993, currently undertaking PHD studies.
1
Convention on the Elimination of Discrimination Against Women (CEDAW) Article 11 (1)(a)
2
‘Women now comprise an increasing share of the world’s labour force –‘a third in all regions except
northern Africa and western Asia’ and in Europe women’s participation in the work-force has increased at
4 times the rate of men’s since 1994. Angela King notes the ‘clear link between gender inequality and
poverty, globalisation has bypassed hundreds of millions of women and girls’: Respectively in, UN
Statistics Div.(last census 2002),statistics & indicators on women and men, World’s women 2000:chap5work, at URLhttp://unstats.un.org/unsd/demographic/work2000.htm and Ms. King –Special Advisor on
Gender Issues and Advancement of Women in her introductory statement to 58 th session of the General
Assembly 15 October 2003. at UNIFEM –Economic Security and Rights
URLhttp://www.unifem.org/index.htm pg 3
3
IRS Employment Trends:Sept.1996, Sexual Harassment at work: Incidence &Outcomes pg 5
4
IRS ibid pg5
5
11thsession 1992 available at URLhttp://www.un.org./womenwatch.daw/cedaw/recommendation.htm
1
framework for outlining the international position followed by the EU and UK
interpretation through examination of local legislation, case-law and some suggested best
practice principles.
The International Position
The gravity of the (GR19) Comment on Article 11 of the Convention on the Elimination
of Discrimination against Women (CEDAW) is a stark reminder that most of the world's
working women continue to remain at the lower end of a segregated labour market and
are concentrated in a few occupations6. It begins with a statement:
'That equality in employment can be seriously impaired when women are subjected to genderspecific violence such as sexual harassment in the work-place'.
The (GR19) definition of sexual harassment broadly mirrors statutory definitions which
have been incorporated into existing sex discrimination acts in a number of State parties’7
national legislatures.
'Sexual harassment includes such unwelcome sexually determined behaviour as physical contact
and advances, sexually coloured remarks, showing pornography and sexual demand, whether by
words or actions. Such conduct can be humiliating and may constitute a health and safety
problem; it is discriminatory when the women has reasonable grounds to believe that her
objection would disadvantage her in connection with her employment, including recruitment or
promotion, or when it creates a hostile atmosphere’.
The UK response to the 'health and safety problem' has been to impose a duty8 on an
employers to ensure as far as practicable, the health and safety of all employees
encouraging access to counseling services for sexual harassment victims. The duty
extends to the carrying out of risk assessments of vulnerable employees. This is detailed
in the domestic section.
(GR19) adopts Article 7 (h) of the Covenant on Economic, Social and Cultural Rights
(ICESCR). The Comment makes clear that 'gender based violence' is a nullification of
human rights and fundamental freedoms which includes: 'the right to just and favorable
conditions of work'.
'Gender based violence, which impairs or nullifies the enjoyment by women of human rights and
fundamental freedoms under general international law or human rights conventions, is
discrimination within the meaning of article 1 of the Convention. These rights and freedoms
include: at 7 (h) the right to just and favorable conditions of work’9.
6
UN stats. ibid pg1
Including, Australia, Canada, US, UK, EU Community Law.
8
Health &Safety at Work Act 1974 (UK)
9
‘the right to just and favourable conditions’ is also incorporated into ILO Conventions, and appears in
various forms in national legislatures, and State practices, it is a recognised principle of international
customary law and its worth discussing whether it may be justiciable under the CEDAW Optional Protocol.
7
2
Underlining the breadth of the Conventions application; (GR19) refers to Articles 2(e),
2(f) and 5, of CEDAW.
'Emphasizing that discrimination under the convention is not restricted to action by or on behalf
of Governments. For example under article 2(e) the convention calls on State parties to take all
appropriate measures to eliminate discrimination against women by any person, organisation or
enterprise. Under general international law and specific human rights covenants, States may also
be responsible for private acts if they fail to act with due diligence to prevent violations of rights
or to investigate and punish acts of violence, and for providing compensation’.
Domestically, State parties and private employers generally have a full legal defence if
they can demonstrate they have taken all practicable steps to prevent sexual harassment
by active workplace policies and awareness strategies10. In the UK this is a stringent test,
see the Caniffe case below which illustrates that such steps are scrutinised on a case by
case basis.
Bearing in mind the injunction at Article (2) that all State parties agree 'to pursue by all
appropriate means and without delay a policy of eliminating discrimination against
women', the reality is that while this timeframe was applied by some State parties with
regard to access to recruitment and education, the implementation of sexual harassment
initiatives by State parties 'acting in good faith' has been more along the lines of
'achieving progressively the full realisation of recognised rights11'
In light of the above comments the Committee ends with a specific recommendation with
respect to Article 24 (j) CEDAW:
'That State parties should include in their reports information on sexual harassment, and on
measures to protect women from sexual harassment and other forms of coercion in the
workplace'.
An important element to the practical realisation of rights is the compilation of statistics
and research on the extent, causes and effects of violence and the effectiveness of
measures to prevent and deal with violence. Many member States require this
information as part of their budgetary allocation agreements with enforcement bodies,
and those responsible for the administration, delivery, and monitoring of national
discrimination, criminal, and compensation services, often through publicly available
annual reports12.
Sexual Harassment: legal developments in the EU and the United Kingdom
Developments with respect to sex equality at the European community level have been
occurring alongside, but with little reference to the developments at international level.
Generally the systems have developed separately13.
10
ibid 7, generally a defence to an alleged breach of sexual discrimination legislation by employers.
Text of article (2) of the International Covenant on Economic, Social and Cultural Rights, the (timeframe clause).
12
ibid 7, there may be other States not mentioned by the author.
13
Catherine Barnard, ‘Gender Equality in the EU: A Balance Sheet’ in ‘EC Employment Law’,
(Chichester, Chancery Lane Publishing 1994, ibid 13, pg 221.
11
3
The relevant EU soft law measures are more detailed than the (GR19) : a Council
Resolution, a Commission Recommendation, and a Code of Conduct. The definition may
be helpful:
'conduct of a sexual nature, or any other conduct based on sex affecting the dignity of women and
men at work, including conduct of superiors and colleagues'
This conduct is deemed to constitute an intolerable violation of the dignity of workers or
trainees and is unacceptable if:
(a) such conduct is unwanted, unreasonable and offensive to the recipient;
(b) a person's rejection of or submission to such conduct on the part of employers or workers
(including superiors or colleagues) is used explicitly or implicitly as a basis for a decision
which affects that persons access to vocational training, access to employment, promotion,
salary or any other employment decisions;
and/or
(c) Such conduct creates an intimidating, hostile or humiliating work environment for the
recipient.
The definition of what constitutes sexual harassment is subjective, not objective. Account
is taken of the effect of the conduct upon the particular individual concerned rather than
examining the effect of equivalent conduct on a 'reasonable person'14.
The essence of the definition is that the conduct is unwanted by the recipient: In the
words of the Code 'sexual attention becomes sexual harassment if it is persisted in once it
is made clear that it is regarded by the recipient as offensive. The definition also
distinguishes between conduct which damages the employee's working environment
(hostile working environment) (Article 1(c)) and conduct which is used as a basis for
employment decisions affecting the victim (Article 1(b)). In either case the woman can be
said to enjoy less favorable working conditions than her male colleagues. This invokes
Article 5 the Equal Treatment Directive15. The Directive which gives legal effect to the
prohibition on sexual harassment states that the 'principle of equal treatment' means no
direct or indirect discrimination whatsoever on the grounds of sex, marital or family
status as regards access to employment, including promotion, vocational training and as
regards working conditions. European law has supremacy over the national law of EU
member states and can have the effect of extending rights and prohibitions under national
legislation16.
In the UK and Ireland there has been judicial acceptance that sexual harassment may
constitute unlawful discrimination. An example of this is Strathclyde Regional Council v
Porcelli;17 Mrs. Porcelli was a school lab technician who was subjected to a campaign of
vindictiveness by two male colleagues, part of which was a sexual nature. The Court of
14
Barnard ibid 13 at pg 253
Barnard loc cit 13 at pg 253
16
Barnard loc cit 13 at pg 253
17
Respectively [1986]IRLR 134, see extract on the case in Rubinstein, Discrimination Law and Practice
14th Ed. 1993, pg 12
15
4
Session ruled that gender specific treatment is 'automatic' sex discrimination. Even if only
some of the harassment complained of was sexual, the harassment was discrimination on
the grounds of sex. What mattered was the treatment not the motive for it. Authority for
this position can be drawn from (GR19) specifically, the 'gender –based violence'
comment extracted above.
A man would not usually be harassed or treated or in this way. She is thus a victim of
discrimination. Catherine Barnard18points out that the link with the equal treatment
directive extracted above imposes certain constraints on the development of the
framework which could successfully eliminate all forms of sexual harassment. It imposes
a requirement, first, that there should be a comparator who is more favorably treated ; and
secondly that the comparator and the victim should be of the opposite sex. Therefore,
those who work in single-sex environments who find, for example the display of
pornographic photographs offensive19 are left without a remedy.
Similarly those who find that their comparators are treated equally as badly are also
unable to claim that they are victims of discrimination. A full discussion of the formal
versus substantive models of equality is outside the scope of this exercise but it may be
worth having a fuller examination of Barnard's suggestion that this may be one example
of where a principle of equality based on disadvantage may help. The British
Employment Appeal Tribunal followed this approach in British Telecommunications v
Williams.20 The Court ruled that because the conduct which constitutes sexual harassment
is gender specific, there is no defence to a complaint for sexual harassment that a person
of the opposite sex would have been treated similarly21.
Some examples of how the law has been interpreted and applied in the UK
The Sex Discrimination Act 1975 UK (SDA) outlaws detrimental treatment in
employment based on a persons gender and this includes sexual harassment. The Act
gives rights to a broad range of workers and work-related situations. It protects for
example, business partners, contract workers, apprentices and voluntary workers in
certain circumstances. Statutory rights are conferred without a length of service
qualification.
The individual is held to be legally responsible for his/her own unlawful actions under the
SDA with the employer also held personally liable for those actions, whether or not they
were committed without knowledge or approval. However as previously mentioned,
defence to liability exists if it can be shown all reasonably practicable steps to prevent
such actions were taken. In the Caniffe22 case which dealt with employer’s liability for
harassment, Ms. C. was sexually assaulted while at work. Her claim of sex discrimination
18
Barnard op cit 13 at pg 254
Barnard loc cit13 pg.254
20
[1997]IRLR 688, in Barnard op cit 13 pg 255, for an example of grounds of discrimination which
embeds the concept of disadvantage see the South African Constitution at Section 9 (for seminar
discussion) available at URLwww.workinginfo.com/free/Sub_for_legres/const.htm
21
Bernard op cit pg.254
22
Caniffe v East Riding of Yorkshire Council (2000 EAT) (IRLR 555) in Rubinstein ibid 17 pg. 14
19
5
failed. The Tribunal had considered that by having disciplinary, grievance and personal
harassment policies in place that had been drawn to the attention of all employees, the
Council had discharged its liability having taken all practicable steps possible to prevent
sexual harassment at work.
The Tribunal had not considered what further steps the council could have taken and Ms.
C. successfully appealed against this decision. The Employment Appeals Tribunal (EAT)
ruled the proper approach tribunals should take when deciding on liability was firstly to
identify whether any preventative steps had been taken by the employer and, having done
so, to consider what further steps the employer could have taken which were reasonably
practicable.
Mishandling the situation can lead to further acts of discrimination. In Balgobin23 the
victim was forced to continue working in the same place as the harasser against her
wishes. The European code24 of practice recommends that:
'even where a complaint is not upheld because, for example the evidence is regarded as
inconclusive, consideration should be given to transferring or rescheduling the work of one of the
employees concerned rather than requiring them to continue to work together against the wishes
of either party'.
This has been a common outcome for sexual harassment cases because of the evidential
difficulties.
In 1994 the European court25 ruled that in principle the burden of proving sex
discrimination lay with the applicant. It recognized however that adjustments to national
rules on the burden of proof may be necessary to ensure the effective administration of
equality.
Section 63A of the (SDA) UK recognizes the difficulty of proving discrimination has
taken place (because it is not overt). Currently there is a case26 at the EAT which will
clarify the reversal on the burden of proof in sex discrimination cases. The position as it
stands is that if an employee proves facts which suggest that she/he has been treated
unfavorably because of sex discrimination, the burden shifts to the employer to provide a
legitimate explanation of their treatment of the employee.
23
Balgobin and Francis v London Borough of Tower Hamlets (1987 EAT) (IRLR 401) in Rubinstein,
‘Discrimination Law and Practice’, 13th ed. 2002 pg 14.
24
The European Code of Practice : Protecting the Dignity of Women and Men at work 1991; gives
practical guidance to employers, trade unions and employees on the protection of dignity at work in both
public and private sectors.
25
Case C-127/92,Enderby[1994]ECR I-5535 in Barnard op cit 13, pg. 255
26
Madarassy v Nomura International (no ref ) currently before the ( EAT), a decision is expected in 3 to 4
weeks. Information is available at the EOC web address below at ibid 27
6
The UK Equal Opportunity Commission (EOC) 27recommends the following as
reasonable steps to take in formulating best practice for the prevention of sexual
harassment:

Be proactive. Have an up to date and comprehensive sexual harassment policy with
procedures for handling sexual harassment complaints.

Make sure the policy is broad-based in terms of the work and work related situations
to which it applies.

Make sure employees are aware of and understand the policy

The policy should make sexual harassment a gross misconduct issue (generally under
organisational disciplinary procedures this would attract suspension or dismissal from
employment)

Ensure the policy is a living document that is reviewed and revised periodically.

Consider whether there are any further steps that could be taken to try to prevent
incidence of sexual harassment.

Conduct risk assessments.

Address complaints effectively without delay with regard to natural justice for both
the complainant and the alleged harasser (s)

Ensure investigations and resulting recommendations are followed through.

Maintain a watching brief on those who have been victims of sexual harassment, or
those who may be vulnerable, to ensure they are not exposed to inappropriate
treatment

Keep records of complaints, their outcomes and action taken, for monitoring purposes
and to ensure policy and procedures are adhered to.
Risk assessments imposed under statutory duty
The UK has imposed a requirement on employers to conduct risk assessments28 to
identify groups and individuals who may be vulnerable to sexual harassment and action
to comply with statutory health and safety requirements. The failure to undertake such an
assessment is the ground for complaint in the Madarassy case referred to above.
27
The UK Equal Opportunity Commission also sets out best practice procedures for investigation of sexual
harassment complaints at URL < http://www.eoc.org.uk/cseng/advice/sexual_harassment.asp>
28
The Management of Health and Safety at Work Regulations 1999 (UK)
7
Ms. M., who worked in a bank, claims the failure to carry out a risk assessment when she
was pregnant and on her return from maternity leave, when she was breast-feeding, was
sex discrimination. (The risk assessment would have acted to identify her as vulnerable to
discriminatory dismissal during this period unless there were lawful non-discriminatory
reasons). A decision is pending.
Sanctions
Finally, a brief discussion of sanctions. Article 6 of the Equal Treatment Directive
requires:
'Member States shall introduce into their national legal systems such measures as are necessary to
enable all persons who consider themselves wronged by failure to apply to them the principle of
equal treatment within the meaning of Articles 3.4, and 5 to pursue their claims by judicial
process after recourse to other competent authorities'.
Article 6 does not proscribe a specific sanction, leaving States' discretion. The court has
restricted that discretion so that States ‘cannot exclude judicial control altogether’.
Secondly any sanction must 'guarantee real and effective judicial protection' and this
must also have a real deterrent effect on the employer29
The SDA UK provides for a choice of remedies that may be awarded by employment
Tribunals for sex discrimination claims:

A declaration that discrimination has occurred

Compensation for actual financial loss, injury to feelings, injury to health, aggravated
damages and possibly exemplary damages.

In Marshall v Post Office30 the Tribunal recommended an apology and a transfer of
those that had been involved in the harassment and failure to investigate; the creation
of a review panel to investigate, report, and make recommendations for equal
opportunities policies and procedures in the work-place.

Interest on Compensation.
The upper limit on compensation was legally challenged and removed in 199331, and the
general principles underlying the calculation of awards are analogous to any common law
court. Many other jurisdictions are capped by legislation. The benefits of this are
threefold:

The complainant has the option of conducting her action for sexual harassment
through the informal tribunal system confident that if she is successful the
29
Respectively, Case 222/84, Johnston v RUC [1986] ECR1651 and Case 14/83, Von Colson [1984] ECR
1891, at para.23, in Barnard op.cit13 pg.257.
30
2602447/97 EAT (UK)
31
Marshall v Southampton & South-West Hampshire Area Health Authority (No.2) in Rubinstein op cit 17
pg12.
8
principles applied to an award of compensation are the same in an equivalent
common law court, so there is no detriment.

Significant sums of compensation operate as a deterrent, and provide incentive to
employers to maintain active sexual harassment work-place policies.

The community message is that sexual harassment is a serious offence.
Despite these positive developments the difficulties associated with sexual harassment
still mean many women will not legally challenge the unwanted behaviour. In particular
young women, women working in small work-place environments, or where there is a
lack of support services are most vulnerable in these situations.
Workplace sexual harassment is a wide-spread and systemic problem for women. The
zero tolerance approach taken by the Social Security Agency in Northern Ireland32 which
led to a drop from 8 cases to zero over the last 4 years is an example of where
organisational commitment saw the problem eliminated. Such an approach together with
on-going allocation of funds for promotion of preventative practices, and the proper
maintenance of the enforcement bodies will mean some women will see their inalienable
right to work in just and favorable conditions fully realised.
.
‘Preventing and dealing with harassment at the NI Social Security Agency’, IDS diversity at work No.2,
August 2004 pp8-14
32
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