Workplace Harassment & Discrimination - Eswatini

Legal Framework for Workplace Harassment and Discrimination in Eswatini

Eswatini's employment and labor law framework provides protection against workplace harassment and discrimination through several key legislative instruments. The primary statute governing employment relationships is the Employment Act, 1980, which has been amended multiple times to strengthen worker protections. Additionally, the Constitution of Eswatini (2005) enshrines fundamental human rights and freedoms, including protection from discrimination and inhuman treatment.

The Industrial Court Act establishes a specialized court system for resolving employment disputes, including harassment and discrimination claims. Workers in Eswatini also benefit from sectoral regulations and international labor standards to which the country is signatory, including conventions from the International Labour Organization (ILO).

Prohibited Grounds of Discrimination

Eswatini's legal framework prohibits workplace discrimination based on several protected characteristics. While the Employment Act does not provide an exhaustive list, the Constitution and international obligations of Eswatini establish the following protected grounds:

• Race and ethnicity: Discrimination based on racial or ethnic origin is prohibited
• Gender: Includes discrimination based on sex, pregnancy, and gender identity
• Religion: Discrimination based on religious belief or practice
• National origin: Protection for workers of different nationalities
• Political opinion: Safeguards against discrimination for lawful political views
• Disability: Workers with physical or mental disabilities are protected from discrimination
• Age: Discrimination in hiring, promotion, or termination based on age
• Marital or family status: Includes protection for single parents and caregivers

Definition and Forms of Workplace Harassment

Workplace harassment in Eswatini is understood as unwelcome conduct that creates an intimidating, hostile, or offensive work environment. While Eswatini's legislation does not provide a single statutory definition of harassment, jurisprudence from the Industrial Court and international labor standards define it as follows:

Sexual Harassment

Unwelcome sexual advances, requests for sexual favors, or other verbal, non-verbal, or physical conduct of a sexual nature that affects employment or creates an intimidating, hostile, or offensive work environment. This includes quid pro quo harassment (where employment benefits are conditioned on sexual conduct) and hostile environment harassment.

Racial or Ethnic Harassment

Conduct based on race or ethnicity that demeans, ridicules, insults, or threatens an individual or creates a hostile work environment based on these characteristics.

Disability-Based Harassment

Unwelcome conduct, mockery, or exclusion based on a person's physical or mental disability.

Religious Harassment

Conduct that interferes with or prevents the exercise of religious beliefs, including mockery or coercion regarding religious practices.

Bullying and Intimidation

Repeated, unreasonable behavior directed toward a worker that creates risk to health and safety or creates a hostile environment.

Employer Obligations and Responsibilities

Under Eswatini's employment law, employers have affirmative duties to prevent and address workplace harassment and discrimination:

1. Establish policies: Employers must develop and communicate clear written policies prohibiting harassment and discrimination in the workplace
2. Training and awareness: Employers should provide regular training to all employees, particularly supervisory and managerial staff, on identifying and preventing harassment and discrimination
3. Investigation procedures: Employers must establish fair, impartial, and confidential procedures for investigating complaints
4. Corrective action: Employers must take prompt, appropriate remedial action against individuals found to have engaged in harassment or discrimination
5. Non-retaliation protection: Employers must protect employees from retaliation for filing complaints or participating in investigations
6. Workplace accommodation: Employers must make reasonable accommodations for workers with disabilities and those with religious requirements
7. Record-keeping: Employers should maintain records of complaints, investigations, and corrective actions

Worker Rights and Remedies

Workers in Eswatini who experience harassment or discrimination have several rights and available remedies:

• Right to complain: Workers have the right to lodge complaints without fear of retaliation
• Right to fair investigation: Complaints must be investigated fairly and impartially within a reasonable timeframe
• Right to representation: Workers may be represented by a trade union, labor representative, or legal counsel during investigations and proceedings
• Confidentiality: Information regarding complaints and investigations should be kept confidential to protect all parties involved
• Reinstatement: In cases of unfair dismissal related to harassment or discrimination, workers may seek reinstatement or compensation
• Compensation for damages: Workers may receive compensation for lost wages, emotional distress, and other damages
• Access to justice: Workers may pursue claims through the Industrial Court or other appropriate forums

Internal and External Complaint Procedures

Employees experiencing harassment or discrimination should follow established procedures to seek redress:

Internal Procedures

1. Report to immediate supervisor: If appropriate and safe, report the incident to the direct supervisor or manager
2. Escalate to Human Resources: If the supervisor is the source of harassment or does not address the concern, escalate to the HR department
3. File formal complaint: Submit a written complaint detailing the incidents, dates, witnesses, and requested resolution
4. Participate in investigation: Cooperate fully with the employer's investigation while protecting personal rights
5. Document outcomes: Request written confirmation of investigation findings and corrective actions

External Procedures

1. Trade Union assistance: Contact a relevant trade union for support and representation
2. Labor Commissioner: Submit complaints to the Labor Commissioner's office, which has authority to investigate and mediate disputes
3. Industrial Court: File a case with the Industrial Court if internal remedies are exhausted or prove ineffective
4. Legal counsel: Seek advice from an employment lawyer experienced in labor law matters

Burden of Proof and Evidence

In discrimination and harassment cases in Eswatini's Industrial Court, the burden of proof generally follows these principles:

• Prima facie case: The complainant must establish a prima facie case of discrimination or harassment by providing evidence of facts that would suggest illegal conduct
• Employer response: Once a prima facie case is established, the burden shifts to the employer to provide legitimate, non-discriminatory reasons for their actions
• Pretext analysis: The complainant may then demonstrate that the employer's stated reasons are pretextual or were applied discriminatorily
• Standard of proof: The civil standard of "balance of probabilities" applies, meaning the complainant must show that their version is more likely than not to be true

Protection Against Retaliation

Eswatini law explicitly protects workers from retaliation for reporting harassment or discrimination. Retaliation includes:

Adverse employment actions

Termination, demotion, transfer to less favorable positions, reduction in hours, or denial of promotion as punishment for complaining

Harassment as retaliation

Subjecting a complainant to further harassment or hostile treatment following a complaint

Interference with employment

Actions that threaten job security or employment status in response to protected activity

If a worker suffers retaliation after filing a complaint, they may pursue additional legal claims and remedies, including compensation and reinstatement.

Practical Recommendations for Employees and Employers

For Employees

• Familiarize yourself with your employer's anti-harassment and anti-discrimination policies
• Document incidents of harassment or discrimination with dates, times, locations, and witnesses
• Report incidents promptly using your employer's established procedures
• Keep copies of all correspondence related to your complaint
• Seek support from trade unions or employee assistance programs
• Do not resign unless the situation becomes genuinely intolerable; consult legal counsel before any major employment decision

For Employers

• Develop comprehensive anti-harassment and anti-discrimination policies aligned with Eswatini law
• Communicate policies clearly to all employees and include them in employment contracts and employee handbooks
• Conduct regular training for all staff, with specialized training for managers and supervisors
• Establish accessible, confidential complaint procedures
• Investigate complaints promptly and thoroughly
• Take appropriate corrective action proportionate to findings
• Monitor workplace culture and address systemic issues
• Maintain records and review cases to identify patterns

Conclusion

Eswatini's legal framework provides meaningful protections against workplace harassment and discrimination through constitutional guarantees, statutory protections, and specialized dispute resolution mechanisms. While challenges remain in full implementation, workers have access to remedies through internal procedures, the Labor Commissioner, and the Industrial Court. Both employees and employers benefit from understanding their rights and obligations, maintaining clear policies, and addressing complaints promptly and fairly.