By Godfrey Kenneth Beni:
Many employers in Malawi think that the Employment Act covers the issue of sexual harassment, although this is untrue. Sexual harassment is not mentioned in the Employment Act of 2000, which is the primary law pertaining to workplace relations.
Although the Act prohibits victimisation in Section 12 and sex-based discrimination in Section 5, it does not explicitly criminalise sexual harassment as a stand-alone offense or compel companies to create anti-harassment policies, complaint procedures or training.
Rather, this vacuum is filled by the Gender Equality Act of 2013 (No. 3 of 2013), which expressly forbids sexual harassment in Section 6. Unwanted sexual advances, requests for sexual favours and other verbal, nonverbal or physical acts of a sexual nature that create an intimidating, hostile or offensive environment in the workplace or in connection with it—including circumstances in which a request for sexual favours is made—are all considered forms of sexual harassment under this Act.
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Section 7 delves deeper. Positive obligations are created for all employers: Adopt a policy that prohibits sexual harassment; provide a complaints process; discipline the harasser; and make sure harassers do not mistreat victims for reporting their harassment.
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The official organisation tasked with executing provisions of the Gender Equality Act is the Malawi Human Rights Commission (MHC). Employers may be held negligently accountable for noncompliance with Section 7 if they lack an efficient complaints process for sexual harassment. The law does exist. Neither a “blank” nor a “lack” exist.
The majority of employers have never read the Gender Equality Act, which makes a difference. When they examine the Employment Act, they are unable to uncover any evidence that it is necessary. They are in an extremely risky situation.
Despite the fact that sexual harassment is not specifically covered by the Employment Act, victims of sexual harassment of either gender have three powerful instruments at their disposal to seek redress. These should be known to all employers.
Constructive dismissal under Section 60
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An employee may be able to claim that her continuing employment was “unreasonable” because of the employer’s unwillingness to address sexual harassment if she resigns as a result. The Industrial Relations Court has the power to declare a resignation to be constructive dismissal and may award reinstatement, re-engagement or compensation, including back pay and distress compensation. Both male and female employees may take it for granted.
In line with Section 58, read with Section 57(3), if the dismissal was unjust, it will be assumed that an employer has acted unfairly if they fire an employee due to a sexual harassment accusation. If an employee files a complaint or participates in legal action against their employer for suspected legal violations, they may be protected under Section 57(3)(g).
The Gender Equality Act is a law. Reporting sexual harassment is protected. If an employer fires a worker for filing such a report, it is automatically considered an unjust dismissal and the employer must refute this assumption. Neither the worker’s nor the aggressor’s sex is requested by the protection.
Employers who are aware of, or suspect, harassment are engaging in sex-based discrimination against the harasser’s victim. Section 5 prohibits such discrimination. If your Section 7 rights have been violated, you may be entitled to compensation, reinstatement and the restoration of your benefits. It covers a man who is hurt because he is a male, such as when he is disparaged by remarks about masculinity. When a woman is harassed because she is a woman, she is protected. Differences are ignored by the law.
The Gender Equality Act does not compete with the Employment Act. They are pals. Both are available to a victim of sexual harassment, whether male or female. If the employer violates provisions of one, he or she will most likely violate the other. The sanctions will stack up. The law is fragmented, which creates a knowledge barrier for employees.
However, if a worker, whether a man, a woman, or any other gender, is sexually harassed, he or she may conclude that there is no express restriction in the Employment Act, and thus has no protection. Perhaps you will retire in privacy. Sometimes you have to cope with the abuse. All of this happens because they need a place to turn for legal protection.
Male victims face a higher number of difficulties. According to cultural expectations, men are expected to be ‘tough’, take sexual attention and not be victims simply because they are physically stronger. Here are a few of the myths debunked. Sexual harassment has nothing to do with strength because power is determined by who possesses it. It is about total humiliation, domination and exploitation.
Anxiety, despair loss of confidence and, in some cases, post-traumatic stress are the psychological consequences of harassment for both men and women.
However, he is unlikely to come forward. He i s terrified of being ridiculed. He is frightened of being told to “man up”. He does not want people to believe what he says. He is protected by law. However, society does not.
It is considerably greater for victims of same-sex harassment. An employee who is being harassed by another employee of the same sex may be apprehensive that reporting the harassment may reveal his or her sexual orientation. Many believe that management will be unfriendly to them because of their sexual orientation. They can believe that the law does not apply to them. They are wrong. It is illegal under the Gender Equality Act because people’s actions are illegal regardless of their gender.
The fragmentation provides a compliance risk to organisations that affects all employees. You have attentively read the Employment Act. There could be policies in place to prevent prejudice and/or victimisation. If you have not studied the Gender Equality Act, you may be unaware that you must implement a specific anti-sexual harassment policy, a complaints mechanism and a disciplinary process for the protection of all employees, regardless of gender. Not knowing about the Gender Equality Act is not a defence in a court of law.
Claims under both Acts can be made in a single incidence of harassment, regardless of whether the person involved is male, female or of any gender. It reduces court and enforcement staff and resources.
For society, it is a problem of confidence, which is being lost due to fragmentation. Citizens may struggle to understand their rights if they are distributed across multiple pieces of legislation. Victims, particularly men, may be unaware that a law exists to protect them. They do not complain openly because they believe they have no other choice. Harassment policies may be considered “women’s issues” and do not necessarily protect everyone.
Setting up a thorough complaints process is essential. A designated Harassment Officer, Human Resources, a direct supervisor (if they are not involved), and an anonymous reporting option should all be included in this process. Throughout the procedure, confidentiality needs to be protected. It is important to set deadlines for the inquiry and settlement, usually within 14 days. Furthermore, the process must expressly forbid retaliation of any kind against those who bring complaints. All employees, even those who might not be literate, should be able to access it.
Make sure that complainants are protected from reprisals. This is a separate commitment. It is crucial that the complainant not be punished for raising concerns, even if the company investigates and disciplines the offender. Unfavourable performance reviews, exclusion from meetings, reassignment to a less desirable location, reduced working hours or even termination are all examples of retaliation. Any of these behaviors that are connected to a complaint are considered violations of the Act. This protection also applies to male complainants, who often face increased risks of retaliation because their complaints are not taken seriously.
Despite these clear legal requirements, the actual reality differs greatly. From November 2021 to April 2022, the Malawi Human Rights Commission audited 60 institutions’ sexual harassment policies, finding that many of them lacked official procedures. Whether they know it or not, a significant portion of companies are violating provisions of the Gender Equality Act.
Every employer needs an anti-sexual harassment policy. The Malawi Human Rights Commission has created a model policy that employers can use. However, every policy must include these essential elements in gender-neutral language: a clear statement that sexual harassment is not allowed and will not be tolerated; a definition of sexual harassment that covers verbal, non-verbal, and physical behaviour, without specifying genders; concrete examples that show different situations, including male victims, female victims, same-sex harassment and different-sex harassment; multiple reporting channels, including an anonymous option; the name and contact details of a designated Harassment Officer, considering both male and female officers; a non-retaliation clause that protects complainants and witnesses of all genders; a commitment to investigate promptly, thoroughly, and confidentially within a specified timeframe, such as 14 days; a range of appropriate disciplinary actions, up to and including dismissal; a statement that differentiates false complaints made in bad faith from unproven complaints made in good faith; a communication plan that explains how the policy will be shared with all employees, including those who cannot read; and a review date to keep the policy up to date with the law.
Employers do not adhere to Section 7 of the Gender Equality Act if they do not have any of these components. Companies that have a policy but have not shared it do not follow it. Employers who have a policy but have never provided training on it are not adhering to it. The law wants results, not effort. It will take time to resolve Malawi’s labour laws’ fragmentation. The absence of an ideal legal structure, however, does not justify inaction.
Right now, each stakeholder has a part to play. The question is not whether sexual harassment is prohibited by law; it is. Whether we—employers, workers, unions, the government, Parliament, the media and civil society—will actually implement that ban is the question. Complicity is implied by silence. Acceptance is the result of inaction. Talk. Take action. Defend. For every employee, regardless of gender, who has been harmed and informed that the law is unable to intervene. Yes, there is! And now is the moment to take action.
*The author is a human resource practitioner
Feedback: kennethbeni35@gmail.com
