In this two-part series, we explain how an employer can ensure that they are adhering to the relevant legislative requirements and highlight the potential consequences of not doing so.
In the first article on this topic, we looked at what a Bullying and Sexual Harassment Policy must contain, and how it must be introduced to employees. In this article, we consider the consequences of not having a Bullying and Sexual Harassment Policy, as well as how an employee can make a complaint under the Human Rights Act 1981 (HRA).
What are the consequences of not having a Bullying and Sexual Harassment Policy?
As stated in our previous article, it is a statutory requirement for an employer to have a Bullying and Sexual Harassment Policy. Any employer who does not have such a policy, or who does not have a policy which is compliant with the requirements of the EA (as detailed in Part 1), “shall be liable to a civil penalty” (s.10B(6) of the EA).
Under the EA, a civil penalty of not more than $5,000 can be imposed by the Manager of Labour Relations (s.37A of the EA) and a civil penalty of not more than $10,000 can be imposed by the Employment and Labour Relations Tribunal (s.44M of the EA).
Whilst these sums may not sound substantial to many businesses, the reality is that often the lack of a Bullying and Sexual Harassment Policy will only come to light where there is a complaint before either the Supreme Court, the Employment and Labour Relations Tribunal, or the Human Rights Tribunal. In such circumstances, the absence of a Bullying and Sexual Harassment Policy can be used to draw adverse inferences about the culture of a company and the conduct of an employer. It may also generate unwanted adverse publicity for the employer.
More importantly, where an employer is able to show that they have taken all reasonable steps in the circumstances to educate and train employees to not engage in such bullying or harassing behaviours (e.g. by providing a Bulling and Sexual Harassment Policy and associated training), then there is a possibility for the employer to legally separate themselves from the perpetrating employee.
Making a complaint under the Human Rights Act
As stated in Part 1 of this series, a Bullying and Sexual Harassment Policy must include a statement which informs employees of their right to make a complaint under the HRA where sexual harassment has been committed against them.
An employee has “a right to freedom in his workplace from sexual harassment by his employer, or by an agent of his employer, or by a fellow employee, and notwithstanding any requirements in relation to the responsibilities of employers under any other enactment, an employer shall take such action as it reasonably necessary to ensure that sexual harassment does not occur in the workplace” (s.9(3) of the HRA).
Where an employee considers that sexual harassment has taken place against them in the workplace, they can submit a complaint under the HRA to the Human Rights Commission (s.14H of the HRA). Such a complaint can be made orally, electronically or in writing within six months of the incident (however in some cases, a complaint may validly be made up to two years after the incident where there are good reasons for delay and no one will be prejudiced by the delay).
In the event that bullying has a discriminatory element other than sexual harassment, then an employee would also be able to make a complaint to the Human Rights Commission in the same way.
Making a complaint under the Employment Act
Where an employee suffers bullying without a discriminatory element, and an employer does not adequately address the behavior in line with its Bullying and Sexual Harassment Policy, or at all, then it could be open to the employee to bring a claim for constructive dismissal under the EA.
An employee can resign and terminate their contract of employment, on a without notice basis, in circumstances “where the employer’s conduct has made it unreasonable to expect the employee to continue the employment relationship, having regard to the employee’s duties, length of service and circumstances” (s.29 of the EA). That employee is deemed to be unfairly dismissed and, such cases, are commonly referred to as constructive unfair dismissal.
The importance of having a Bullying and Sexual Harassment Policy
The purpose of a Bullying and Sexual Harassment Policy is to eliminate bullying and sexual harassment in the workplace, and to ensure that all employees understand that their company will not tolerate bullying and sexual harassment. By implanting such policies and associated training, employers will be able to reduce the potential for such behaviours occurring.
The potential financial consequences of losing an unfair dismissal or discrimination claim could far exceed $10,000. As such, the risks of not having a Bullying and Sexual Harassment Policy outweigh any potential inconvenience to an employer of implementing one.
First Published in the Bermuda Chamber of Commerce Newsletter (Chamber Insider), February 2025
Locations
Services
Dispute Resolution, Employment & Immigration, Bermuda Employment Legal Services
