Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Barbade (Ratification: 1974)

Autre commentaire sur C111

Observation

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The Committee notes with deep concern that the Government’s report, due since 2018, has not been received. In light of its urgent appeal launched to the Government in 2021, the Committee proceeds with the examination of the application of the Convention on the basis of the information at its disposal.

Article 1 of the Convention. Definition of discrimination.Legislative developments. The Committee notes that the Employment (Prevention of Discrimination) Bill 2020 appears to have been enacted; however, it has not received a copy of the Act but only has access to the Bill. The Committee asks the Government to provide a copy of the Act, if enacted, or to provide information as to why the Bill has not been brought into law.

The Committee notes that, under section 3(1) of the above-mentioned Bill, “a person discriminates against another person where: (a) the person, on a ground specified in subsection (2), directly or indirectly, whether intentionally or not, makes a distinction, creates an exclusion or shows a preference, the intent or effect of which is to subject the other person to any disadvantage, restriction or other detriment; or (b) the person, directly or indirectly, whether intentionally or not, subjects the other person to any disadvantage, restriction or other detriment in the following circumstances: (i) a ground specified in subsection (2) applies to the other person; (ii) as a consequence of the ground the other person does not comply, or is not able to comply, with a particular requirement of the first-mentioned person; (iii) the nature of the requirement is such that a substantially higher proportion of persons to whom the ground does not apply complies, or is able to comply, with the requirement; and (iv) the requirement is not reasonable in the circumstances”. The Bill also prohibits an employer from discriminating in relation to job creation and recruitment (section 4) and with regard to the terms and conditions of employment, disciplinary action or dismissal (section 5). While reiterating its concern at the absence of a Government report, the Committee takes due note of this new definition which appears to cover both direct and indirect discrimination in employment and occupation. The Committee requests the Government to: (i) clarify whether the prohibition of discrimination applies to all aspects of occupation and employment, including access to vocational training; and (ii) if the Bill was passed, provide information on the application in practice of section 3(1) of the Employment (Prevention of Discrimination) Act, including by providing a copy of any related court decision.

Article 1(1)(a). Discrimination on the grounds of sex. Sexual harassment. With reference to its previous comments, the Committee notes the adoption of the Employment Sexual Harassment (Prevention) Act, 2017, which defines and prohibits sexual harassment in the workplace, and sets out a clear grievances procedure. The Committee notes that section 3(1) of the Act defines sexual harassment as including a number of unwelcome sexual behaviours, listed in sub-paragraphs (a) to (g), “in circumstances where a reasonable person would consider the conduct to be offensive”. Section 3(2) adds that a single incident can be considered as sexual harassment. The Committee also notes that section 5(1) of the Act provides that “[a]n employer or a supervisor of an employee shall not in any manner suggest to an employee that the prospects or working conditions of that employee are contingent upon the employee’s acceptance or toleration of sexual advances”. While reiterating its concern at the absence of a Government report, the Committee takes due note of this positive development and requests the Government to provide: (i) information on how sections 3 and 5 of the Employment Sexual Harassment (Prevention) Act are interpreted and applied in practice, for example by providing copies of any court decisions on claims brought under the Act; and (ii) the number of complaints filed under the Act, the sanctions imposed and remedies granted.

Article 1(1)(a) and (b). Grounds of discrimination. The Committee notes that section 3(2) of the Employment (Prevention of Discrimination) Bill 2020 prohibits discrimination on the basis of race, origin, political opinion, trade union affiliation, colour, creed, sex, sexual orientation, social status, marital status, domestic partnership status, pregnancy, maternity, family responsibility, medical condition, disability, age and physical features. While welcoming the inclusion of a number of the grounds set out in Article 1(1)(a) of the Convention and additional grounds as foreseen in Article 1(1)(b), the Committee notes with regret that the grounds of national extraction and social origin, specified in the Convention under Article 1(1)(a), are not included as prohibited grounds of discrimination. The Committee requests the Government to indicate: (i) the measures envisaged to add to the legislation the grounds of national extraction and social origin in the list of prohibited grounds of discrimination; and (ii) how, in practice, workers are being protected against discrimination, in all aspects of employment and occupation, on the basis of these two grounds.

The Committee is raising other matters in a request addressed directly to the Government.