Workplace Harassment & Discrimination - Zambia

Legal Framework for Workplace Protection in Zambia

Zambia's approach to workplace harassment and discrimination is governed by several key legislative instruments. The primary legislation is the Employment Act of 1993, which was substantially amended by the Employment (Amendment) Act of 2015. These laws establish the fundamental rights of workers and the responsibilities of employers to maintain safe and non-discriminatory work environments.

The Constitution of Zambia also provides important protections, particularly under Article 23, which guarantees freedom from discrimination based on various protected characteristics. Additionally, Zambia is a signatory to several International Labour Organization (ILO) conventions, including the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which creates obligations to eliminate discrimination in employment.

Protected Characteristics

Under Zambian law, workers are protected from discrimination on the basis of:

• Race or ethnic origin
• Sex or gender
• Disability
• HIV/AIDS status
• Religion or belief
• Political opinion or affiliation
• Marital status
• Pregnancy or family status
• Age (though specific protections vary)
• National origin

It is important to note that discrimination can occur in hiring, promotion, remuneration, benefits, training, or termination of employment. Employers cannot legally make decisions about employment based on any of these protected characteristics unless there is a genuine occupational requirement that justifies such differentiation.

Defining Harassment and Discrimination

Discrimination

Discrimination occurs when an employer treats a worker less favorably than another worker because of a protected characteristic. This can be direct (overt unfair treatment) or indirect (policies or practices that appear neutral but have a disparate impact on workers with certain characteristics).

Harassment

Harassment is unwanted conduct based on a protected characteristic that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. This can include verbal abuse, physical contact, gestures, displays of materials, or other conduct of a sexual, racial, religious, or discriminatory nature.

Sexual Harassment

Sexual harassment is a specific form of harassment involving unwanted conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, or other verbal, non-verbal, or physical conduct of a sexual character that affects employment or creates an intimidating or offensive work environment.

Bullying

While not always explicitly defined in legislation, workplace bullying involves repeated, unreasonable behavior directed toward a worker that creates a risk to health and safety. This may overlap with harassment in certain circumstances.

Employer Obligations

Employers in Zambia have specific legal responsibilities to prevent workplace harassment and discrimination:

1. Non-discrimination in employment decisions: Employers must not discriminate in recruitment, promotion, compensation, training, or termination based on protected characteristics.
2. Creating a safe work environment: Employers must take reasonable measures to protect workers from harassment and discrimination, including establishing clear policies and procedures.
3. Policy development: Organizations should establish and communicate written policies prohibiting harassment and discrimination, and specifying procedures for reporting and handling complaints.
4. Investigation and remediation: When allegations of harassment or discrimination are made, employers must conduct fair and timely investigations and take appropriate corrective action.
5. Confidentiality and protection: Employers must maintain confidentiality in investigations to the extent possible and protect complainants and witnesses from retaliation.
6. Training and awareness: While not explicitly mandated by law, best practice requires employers to provide training to all employees about discrimination and harassment prevention.
7. Record-keeping: Employers should maintain records of harassment and discrimination complaints and investigations as evidence of due diligence.

Employee Rights and Remedies

Workers in Zambia who experience harassment or discrimination have several avenues for seeking redress:

Internal Grievance Procedures

Most employers with more than a certain number of employees are required to have written grievance procedures. Employees should attempt to resolve issues through these internal mechanisms first, which typically involve submitting a written complaint to management or the human resources department.

Mediation and Conciliation

Workers may seek assistance from the Ministry of Labour through mediation and conciliation services. The Ministry has established mechanisms to help resolve workplace disputes without formal litigation, providing a less adversarial and often faster resolution process.

Employment Relations Tribunal

If internal resolution fails, workers can lodge complaints with the Employment Relations Tribunal, which was established to hear and determine disputes arising from employment relationships. The Tribunal has jurisdiction to award remedies including compensation for damages, reinstatement, or declaration of rights.

Available Remedies

• Compensation for loss of earnings or benefits
• Damages for emotional distress or injury to dignity
• Reinstatement to the position (in cases of unfair termination related to harassment or discrimination)
• Cessation of the discriminatory or harassing conduct
• Declaration of rights and corrective action
• Apology or acknowledgment by the employer

Special Protections

Pregnancy and Family Status

Zambian law provides specific protections for pregnant women and nursing mothers. Women cannot be terminated solely because of pregnancy, and employers must make reasonable accommodations for pregnant workers and mothers. Discrimination or harassment based on pregnancy or family status is prohibited.

Disability

Workers with disabilities are protected from discrimination and have the right to reasonable accommodation. Employers must make adjustments to enable employees with disabilities to perform essential job functions, provided such accommodations do not create undue hardship.

HIV/AIDS Status

Zambian law provides express protection against discrimination based on HIV/AIDS status. Workers cannot be tested for HIV without informed consent, and positive status cannot form the basis for termination or discrimination in employment, except where the nature of work involves genuine occupational requirements.

Reporting and Complaint Procedures

Workers experiencing harassment or discrimination should follow these steps:

1. Document the conduct: Keep detailed records including dates, times, locations, what was said or done, any witnesses, and any impact on work or health.
2. Review employer policies: Consult the employee handbook or HR department to understand the company's grievance procedure.
3. Report internally: File a formal written complaint with the appropriate person (supervisor, HR manager, or designated officer) as stipulated in the grievance procedure. Keep copies of all correspondence.
4. Seek external assistance: If internal procedures fail or are unavailable, contact the Ministry of Labour for guidance or file a complaint with the Employment Relations Tribunal.
5. Consider legal counsel: For serious matters, consult with an employment lawyer to understand options and ensure proper representation.

Protection Against Retaliation

Zambian law protects workers from retaliation for making good faith complaints about harassment or discrimination. Retaliation includes dismissal, demotion, reduction in pay, denial of promotion, or any other adverse employment action taken because a worker has reported harassment or discrimination or participated in an investigation or complaint process.

If a worker is retaliated against after making a complaint, they may file an unfair dismissal claim or additional complaint, and the burden shifts to the employer to demonstrate legitimate, non-retaliatory reasons for any adverse action taken.

Practical Recommendations for Workers

• Understand your rights: Familiarize yourself with relevant policies and legal protections applicable in your workplace.
• Use clear communication: When possible, clearly communicate to the person engaging in misconduct that their behavior is unwelcome.
• Maintain evidence: Keep copies of emails, messages, or documents evidencing harassment or discriminatory conduct.
• Involve witnesses: Ensure that trusted colleagues are aware of incidents, as they may provide corroborating testimony.
• Know your support systems: Identify resources such as employee assistance programs, union representatives, or legal aid organizations.
• Act promptly: Report incidents within reasonable timeframes to avoid claims that you condoned the behavior.
• Seek professional advice: Contact employment law specialists or labor rights organizations if uncertain about procedures or rights.

Current Implementation Challenges

While Zambia has comprehensive legal protections against workplace harassment and discrimination, implementation challenges exist. These include limited awareness of rights among workers, resource constraints in enforcement agencies, delays in tribunal proceedings, and informal employment arrangements where protections are difficult to apply. Workers in rural areas and informal sectors may face particular difficulties in accessing remedies. Additionally, cultural factors and power imbalances between employers and workers can create barriers to reporting.

Organizations such as the International Labour Organization and local civil society groups continue to work with the Zambian government and social partners to strengthen enforcement and awareness of workplace protections.