Castellán

As is known, employers are responsible for the work environment, just as they are for the safety and hygiene of their workers. In this sense, for several years now our Firm has been regularly advising companies from various sectors of activity, warning about the convenience (or necessity) of adopting certain internal preventive policies, as well as how to proceed in order to mitigate responsibilities in case of complaints in administrative headquarters (General Labour and Social Security Inspection of the Ministry of Labour and Social Security) and even in the face of claims in judicial headquarters (https://www.castellan.com.uy/es/noticias/35/acoso-laboral-responsabilidad-de-la-empresa-y-acciones-preventivas.html).

As we previously informed, since there was no specific legal regulation on the matter, it has always been necessary to resort to the notions and guidelines provided by doctrine to identify when we were dealing with these figures, as well as to the criteria adopted by labor jurisprudence to determine the responsibilities and compensations that could correspond in each case. The IGTSS even receives complaints and advises following a procedure similar to that provided for in the Sexual Harassment Law No. 18,561.

However, the situation in Uruguay has changed after the ratification of the “International Labour Convention No. 190 on Violence and Harassment”. Specifically, its entry into force implies that our country will finally have to legislate on the matter, comprehensively and with a gender-inclusive approach, in terms of violence, workplace harassment, and sexual harassment.

ILO No. 190 and the future regulation of workplace harassment in Uruguay

The Convention provides the guidelines that the internal regulations of each ratifying country must follow on the subject, in order to comply with the commitments made.

In this sense, it is expected that the future regulations:

- expressly define what is meant by violence, workplace harassment, gender-based harassment, and sexual harassment. Although it is expected that each internal legislation may adopt its own definitions, the Convention provides generic definitions of violence and workplace harassment, and of gender-based violence and harassment (including sexual harassment) that must be considered.

- establish a broad scope of application. The future regulation must be applicable to violence and harassment that occurs “during work, in relation to work, or as a result of work” in all sectors of activity. It is also expected to cover both dependent workers, outsourced or not, in training (e.g. interns and apprentices), dismissed workers, etc.; and even those people who work in other non-labor contracting modalities (e.g. independent workers, service providers), as well as volunteers and those seeking employment (job applicants), among others.

- contain as fundamental principles respect, promotion, and defense of the right of every person “to a world of work free from violence and harassment”. It must legally prohibit violence and harassment, establishing relevant policies that address the issue; adopting a comprehensive strategy for the application of preventive measures as well as mechanisms for monitoring and control of them; ensuring that victims have access to recourse, reparation, and support avenues; ensuring that effective inspection and investigation means are in place through competent bodies; providing for the establishment of sanctions, etc.

- require companies to adopt certain measures to prevent workplace violence and harassment, and gender-based violence and harassment.

In particular, the Convention states that companies should:

1. establish policies for the prevention of violence and harassment in the workplace, in consultation with workers and their representatives;
2. identify psychosocial risks associated with workplace violence and harassment, considering them in the management of occupational safety and health;
3. adopt prevention and control measures for identified risks;
4. ensure access to information and training on identified risks, knowledge of existing prevention and protection measures, and the rights and responsibilities of both workers and other individuals involved in the application of adopted policies.

What specific measures can be taken today?

As we mentioned earlier, regardless of the provisions of the Convention that entered into force and future internal legislation on the subject, there are certain measures that are advisable to adopt now. Among them, the following stand out:

-        the preparation of “Action Protocols” that inform workers of an internal channel to make complaints and an established procedure for clarifying the reported facts (among other issues);

-        the inclusion of specific informative clauses in Employment Contracts, Internal Work Manuals, etc. that make it clear that all manifestations of discrimination, violence, workplace harassment, or sexual harassment in the workplace are prohibited, repudiated, and severely punished, and that such behaviors are subject to disciplinary sanctions (including possible termination for gross misconduct by the responsible party);

-        the dissemination of informative content (through posters, emails, etc.);

-        the organization of integration and awareness activities, conducting training sessions or workshops with the participation of workers.

Final Reflection

Being a topic that is becoming increasingly important in our country and in the world, today more than ever it is advisable for companies and organizations to adopt early measures such as those mentioned, which will serve not only to prevent these unwanted behaviors, but also when it comes to mitigating the consequences and effects that may arise in case they occur.  

Montevideo, July 2, 2021