This Carnival season: Safeguard employees from sexual harassment

As a manager, just because you can’t control your customers doesn’t mean you aren’t responsible for trying to improve their behaviour when they interact with other people within your business premises.

There is such a thing recently coming to the fore in the management of business by organisations known as “third party sexual harassment,” committed by people holding status as customers, clients or suppliers to your organisation, or implying that they do.

This most often is manifested in making sexual overtures to your staff, making lewd or obscene comments or demanding sexual favours in return for sales or commissions on services.

Although our Parliament has not seen it necessary to legislate against sexual harassment at work specifically, most managers are aware that the organisation they manage can and will be liable if an employee is sexually harassed or abused by a co-worker, supervisor or manager.

The liability can be extended to the knowledge that an employee is being harassed by a favoured customer or client and not doing anything to protect the employee from such unwanted abuse.

Such sexual harassment violates the common law right of an employee to safety in the workplace, and in TT the law goes even further.

The Occupational Health and Safety Ordinance, Ch 88:08, section 6 states: "It is the duty of every employer to ensure so far as is reasonably practicable, the safety, health and welfare at work of all his (sic) employees."

It is notable that even the drafters of legislation, as recently as 2012 when that act was passed and proclaimed, still assumed that an employer would be male, although increasingly, the employer or the manager in charge of the work in commercial establishments is female. According to the OSH Act: section 5(2) also shall applies to industrial establishments belonging to or occupied by the State includes public officers, protective services and teachers.

Employer, by the way, includes the “Dean Akins“ moguls-in-training of the Carnival and entertainment industries, who employ people to assist in getting their mas’ bands or their huge fetes suitably supplied with electronics, and the players adequately costumed, safely and suitably on the road. Or, as the OSH Act puts it, an employee includes: "Any person who has entered into or works under a contract, which can be expressed or implied verbal or in writing, according to the Industrial Relations Act Section2 (1) (3) (b)."

As we are officially now in Carnival season, those responsible for putting their bands on the road and their fetes must be aware that they are not only responsible for covering the not-inconsiderable costs that such activities entail but also ensuring the safety of not only feters and mas players who pay to have security but also those employed – whether paid in cash or the simple pleasure of participatory benefits alone.

As the OSH Act puts it, in respect to adults as well as to young people, defined as those between ages 16 and 18, who often can’t afford the exorbitant prices of the outfits that serve as costumes, so offer themselves as unpaid guard services OSHA Section 2 (10) so “shall be deemed to be an employee for the purposes of the act.”

In some jurisdictions, the liability includes third-party harassment of an employee which may now include young people as defined above.

The act legislated for physical safety as well as mental and physical health of permanent employees implies harassment of any employee by a customer or a client in a commercial establishment.

Many band leaders may not be aware that under the OSH Act, Section 4 (11), “safety” includes the “physical and mental well-being” of the above-mentioned employees, as long as they are within the band premises, although there is some doubt whether the term premises includes the enclosed spaces available to band players only, barred from the rest of the public, and protected by band security while on the road. It certainly does include those employees, administrative as well as creative who work seasonally before the actually scheduled fete and Carnival dates themselves and are responsible "backstage" as it were, to ensure the security of people who pay for costumes, security, food, drinks and access to toilet facilities while joining the parade of the bands or access to the popular fete locations.

Section 10 (1) also makes it mandatory that it is the duty of every employee, while at work, to take reasonable care for the safety and health of themselves and by other people who may be affected by their acts or omissions at work. Since this may be the first exposure for some, it would be a good idea for Carnival and fete leaders to bring this to their attention both for their own sake and for that of the organisation and for what has become a lucrative and established industry.

The death of one Japanese mas’player did irreparable harm to the industry, it must not happen again.

The period between Old Year’s Night and J’Ouvert is a short one this year. We are in a new epoch, and for those of us who have not noticed, times are not only changing, they have already changed. Public liability concepts have also changed. Now is a good time for Carnival leaders to prepare to prevent the very real contingent liabilities that may arise during the season.

Organisers cannot always be responsible for preventing incidences of sexual harassment at work, but they can be expected to take at least two precautions: the first being to establish and make known that the company (including a Carnival band or a professional fete organisation) does not tolerate sexual harassment by its employees, customers or security contractors, and secondly, if and when such an incident takes place, the company has made plans to deal with it and can and will demonstrate its determination to investigate the incident.