Fostering Respect: the Importance of Bullying and Sexual Harassment Policies in Bermuda (Part 1)

In this two-part series, we explain how an employer can ensure that they are adhering to the relevant legislative requirements and highlight the potential consequences of not doing so.

In this article we look at what a Bullying and Sexual Harassment Policy must contain, and how it must be introduced to employees. In our next article, we will consider the consequences of not having a Bullying and Sexual Harassment Policy, as well as how an employee can make a complaint under the Human Rights Act 1981.

What is a Bullying and Sexual Harassment Policy?

Bullying and sexual harassment are issues that undermine the dignity and well-being of employees, and which in turn can impact the productivity of their employer. In a public speech in May 2021, the Minister of Economy and Labour stated that “In Bermuda, the prevalence of bullying and sexual harassment in the workplace is alarming. Also, many bullying and sexual harassment cases are not reported out of fear of retaliation, being ostracised or blacklisted, and the distress of recounting and relieving the trauma caused by the experience”. As a result, the requirement for companies with employees to have a Bullying and Sexual Harassment Policy was introduced.

Schedule 1 of the EA sets out in very specific terms what a Bullying and Sexual Harassment Policy should contain. There is a requirement for it to include both a definition of bullying and sexual harassment which is “substantially the same as the definitions in section 10B” of the EA.

S.10B(1) of the EA defines bullying as “the habitual display of offensive behavior intended to harm, intimidate, humiliate, undermine or coerce a person or group of employees and includes, but is not limited to, ostracising, ridiculing, shouting at, threatening, and verbally abusing a person or group of employees”.

Sexual harassment is defined as “(a) the use of sexually suggestive words, comments, jokes, gestures or actions that annoy, alarm or abuse a person; (b) the initiation of uninvited physical contact with a person; (c) the initiation of unwelcome sexual advances or the requests of sexual favours from a person;  (d) asking a person intrusive questions that are of a sexual nature pertaining to that person’s private life; (e) transmitting sexually offensive writing or material of any kind; (f) making sexually offensive telephone or internet calls or messages to a person; or (g) any other sexually suggestive conduct in circumstances where a reasonable person would consider the conduct to be offensive”.

In addition to the definitions above, a Bullying and Sexual Harassment Policy must also include the following:

• A statement to the effect that every employee is entitled to employment free of bullying and sexual harassment;
• A statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to bullying or sexual harassment;
• A statement informing employees of the measures, including disciplinary measures, that may be taken against any person within the workplace or under the employer’s direction who subjects any employee to bullying or sexual harassment;
• A statement explaining how complaints of bullying and sexual harassment may be brought to the attention of the employer;
• A statement to the effect that no person shall disclose the name of a complainant or the name of the respondent or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measures in relation thereto; and
• A statement informing employees of the provision in the Human Rights Act 1981 which gives them a right to make a complaint where sexual harassment is committed against them and the relevant authority to whom the complaint must be made.

How must a Bullying and Sexual Harassment Policy be presented?

The EA states at s.10B(2) that an employer “shall ensure that the policy statement is presented to each employee on the commencement of his employment with that employer; and that procedures are put in place to assist every employee in understanding the policy statement”.

In fact, it is a requirement to include in an employee’s statement of employment that a written policy against bullying and sexual harassment in the work place exists, and how it can be accessed (s.6(2)(q) of the EA).

Employers regularly include their Bullying and Sexual Harassment Policies in their employee handbook or via Human Resources. It is advisable for employers to provide it to employees and have them sign to confirm they have received, reviewed and understood it.

In terms of training employees in relation to bulling and sexual harassment in the workplace, the Bermuda government has not provided any guidance as to the sort of training that is required. We anticipate, however, that, at a minimum, employees should receive relevant training upon joining the company – which may entail a member of Human Resources or upper management going through the policy with the new employee.

The appropriate steps for an employer to take to introduce the Bullying and Sexual Harassment Policy to an employee may depend on the size and nature of the company. For example, where a company only has one employee it is unlikely to be necessary for the employee to complete online training. However, with larger companies, the more possible it is for issues of bullying and sexual harassment to arise which justifies robust training.

First Published in the Bermuda Chamber of Commerce Newsletter (Chamber Insider), January 2025