Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Zambia (Ratification: 1979)

Article 1 of the Convention. Definition of discrimination. The Committee previously noted that the definition of discrimination in the draft Employment Act (Amendment Bill) does not appear to include the grounds of national extraction and colour, and that the ground of “social status” may have a narrower meaning that the ground of “social origin” set out in the Convention. The Committee notes that, as a result of the adoption of the Employment Amendment Act in 2015, the new section 36(3) of the Employment Act provides that “race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion or affiliation, ethnicity, tribal affiliation or social status of the employee” cannot constitute a valid reason for termination. It further notes the adoption of the Constitution of Zambia (Amendment) Act, 2016, which provides that equality and non-discrimination are part of the national values and principles and defines “discrimination” as meaning “directly or indirectly treating a person differently on the basis of that person’s birth, race, sex, origin, colour, age, disability, religion, conscience, belief, culture, language, tribe, pregnancy, health, or marital, ethnic, social or economic status” (sections 8 and 266). While welcoming the inclusion of the ground of “colour” in both new laws, the Committee notes that despite its previous recommendations the new provisions do not refer to the grounds of “national extraction” and “social origin” set out in Article 1(1)(a) of the Convention. The Committee further notes that, while the Government previously indicated that the new Employment Act would contain a comprehensive definition of discrimination, the Act only refers to discrimination in case of termination of employment. The Committee wishes to emphasize that the principle of equality of opportunity and treatment should apply to all aspects of employment and occupation which include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment, as provided for in Article 1(3) of the Convention. It recalls that clear and comprehensive definitions of what constitutes discrimination in employment and occupation are instrumental in identifying and addressing the many manifestations in which it may occur (see 2012 General Survey on the fundamental Conventions, paragraph 743). The Committee requests the Government to provide updated information on the practical application of section 36(3) of the Employment Act, including a copy of any court decisions on cases where dismissal was based on prohibited grounds, more particularly on the ground of “social status” in order to enable the Committee to assess its meaning in practice, and the remedies provided. In light of the legislative developments referred to in its comments under the Equal Remuneration Convention, 1951 (No. 100), concerning the current elaboration of a Labour Code, the Committee requests the Government to strengthen its efforts to give full legislative expression to the principle of the Convention by defining and prohibiting direct and indirect discrimination in all aspects of employment and occupation with respect to all the grounds set out in Article 1(1)(a) of the Convention and to provide information on any progress made in this regard.

Article 1(1)(a). Discrimination based on sex. Sexual Harassment. The Committee previously noted that sexual harassment was only addressed through the Penal Code and that amendment of section 137A(1) was planned to incorporate provisions of the Anti-Gender Based Violence Act, 2011, to extend the offence of sexual harassment against children in the workplace to an offence of sexual harassment “against a person”, and the setting up of a Fast-Track Court to deal with the delays in dispensing of cases of gender-based violence in the court system. The Committee notes the Government’s indication that the revision process of section 137A(1) of the Penal Code is still ongoing. The Committee notes with interest the adoption of the Gender Equity and Equality Act, on 23 December 2015, which prohibits both quid pro quo and hostile working environment sexual harassment and provides that the Gender Equity and Equality Commission has the power to order any remedies or compensation (section 42(5)). It further notes that section 40 of the Act provides that the Government shall develop and implement appropriate policy and procedures to entitle victims of sexual harassment to have access to appropriate disciplinary and grievance procedures and that employers have an obligation to implement and communicate to all persons, including employees, on such procedures. The Committee however notes that, in the framework of the Universal Periodic Review, the United Nations country team recently stated that, while perpetrators of sexual harassment in the private and public sectors had been prosecuted, employers in such cases had not been held accountable for failure to protect women employees (A/HRC/WG.6/28/ZMB/2, 28 August 2017, paragraph 36). The Committee requests the Government to provide information on the practical application of sections 39 and 40 of the Gender Equity and Equality Act, 2015, including on appropriate policies and awareness-raising measures implemented to address all forms of sexual harassment in employment and occupation, as well as to provide information on the number of complaints filed and the remedies provided. The Committee once again requests the Government to supply a copy of the relevant clauses of the Public Service Disciplinary Code defining sexual harassment and discrimination.

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