Suing for sexual harassment before the Industrial Tribunal

In a preliminary decision given by the Industrial Tribunal (18th January 2016), presided by Dr Yana Micallef Stafrace, the Tribunal held that it was perfectly legitimate for an employee to sue the employer as well as a colleague for redress in cases of alleged sexual harassment.

The issue arose when plaintiff sued the company (her employer) as well as her colleague (alleged perpetrator) for damages before the Industrial Tribunal following an alleged case of sexual harassment.

The defendant colleague (alleged perpetrator) pleaded that the Industrial Tribunal was not competent to hear and determine the case in his regard, as the plaintiff could sue the employer but not a colleague in such civil proceedings before the Tribunal.

The defendant cited Article 30 of Chapter 452 of the Laws of Malta which states that a “person who alleges that the employer is in breach of ……. (including the provisions relative to sexual harassment) can lodge a complaint before the Industrial Tribunal”. Hence, the defendant argued, the law allows for proceedings only against the employer and does not provide for redress before the Tribunal against a fellow employee.

The plaintiff on the other hand argued that Article 29 of the same law expressly prohibited harassment by an employer or employee. Plaintiff argued further that in terms of the law, sexual harassment may be the result of acts coming from an employer or a fellow work colleague. Plaintiff argued that it would be unjust had the law to provide for a prohibition of sexual harassment between employees, but to conclude that there is no course of action available to the alleged victim against a fellow colleague at work.

The Tribunal upheld the plaintiff’s arguments and stated that defendant’s plea had to be rejected. The Tribunal deemed Article 30 such as not to neutralize the rights and obligations afforded by Article 29, including the protection against sexual harassment perpetrated by other employees.

The case was put off for evidence on the merits of the case.

The plaintiff was assisted by SB Advocates.

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