Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Sri Lanka (Ratification: 1998)

Article 1 of the Convention. Legislative protection against discrimination. For a number of years, the Committee has been urging the Government to make every effort to introduce anti-discrimination provisions into its national legislation covering all aspects of employment and occupation and all the grounds enumerated in the Convention. The Committee notes the Government’s statement that constitutional provisions addressing discrimination are above all other legislation and are implemented effectively. The Committee recalls that the Constitution guarantees equality before the law and generally only protects citizens against discrimination on the grounds of “race, religion, language, caste, sex, political opinion, place of birth or any of such grounds” (article 12), and guarantees the freedom to engage in employment and occupation (article 14) and the right of every person to apply to the Supreme Court in respect of violations of these rights by the State (article 17). The Committee recalls that the constitutional provisions against discrimination do not prohibit discrimination on the grounds of colour or national extraction. Due to the sensitive nature of discrimination issues and the need to put an end to discriminatory situations in the workplace in a timely and effective manner, the Committee considers that, in addition to the constitutional guarantees, the inclusion of non-discrimination and equality provisions into the labour or other relevant legislation would be an effective means to address discrimination in employment and occupation, and to enable workers to avail themselves of their rights. Noting the Government’s indication that no discrimination cases in employment have been reported to the Department of Labour, the Committee wishes to recall that the absence of cases of discrimination in employment may reflect the lack of an appropriate legal framework and practical difficulties of access to the procedures. The Committee again urges the Government to take the necessary steps to introduce anti discrimination provisions in its national legislation to ensure that all men and women, citizens and non-citizens, are effectively protected from discrimination in all aspects of employment and occupation on all the grounds covered by the Convention, including colour and national extraction. The Committee further requests the Government to indicate how workers can obtain redress with respect to discrimination by private employers on the grounds enumerated by the Convention and to provide information on the number and nature of employment discrimination cases that have been handled by the Supreme Court pursuant to articles 12(1) and 17 of the Constitution, and their outcome. Please provide copies of any relevant judicial decisions.

Equality of opportunity and treatment between men and women. The Committee notes that in 2013 the labour force participation of women remained low at 35.6 per cent (74.9 per cent for men) and has been relatively for the past ten years. According to the 2013 data, women represented only 10.3 per cent of employers; 33.6 per cent of employees; 26.5 per cent of own account workers and 78.5 per cent of contributing family workers. Noting the information provided in the Government’s report, the Committee welcomes the approval of a comprehensive National Plan of Action for Women and the establishment of specific units to which human and material resources have been allocated to implement the planned activities. The Committee also welcomes the inclusion in the National Action Plan for the Protection and Promotion of Human Rights (2011–16) of measures regarding women’s rights and gender equality in employment, including the formulation through a consultative process and the enforcement of a policy for the private sector adhering to the principle of non discrimination, and research on the problems faced by working women. Welcoming the Government’s efforts in the field of gender equality, the Committee requests the Government to provide detailed information on any policy and measures adopted under the National Plan of Action for Women and the National Action Plan for the Protection and Promotion of Human Rights for the effective implementation of gender equality in employment and occupation and on their impact. It further requests the Government to indicate any measures taken or envisaged to increase the participation of women in the labour force and their access to a wider range of jobs and to higher level posts, including through awareness-raising campaigns and measures to combat stereotypes regarding women’s aspirations, preferences and capabilities and their role in the society. The Committee again asks the Government to provide information on the status of the adoption of the Women’s Rights Bill, and it would be grateful if the Government would provide a copy of the study on the problems faced by working women, once it has been finalized.

Sexual harassment. The Committee recalls its previous comments regarding the absence of effective protection of workers against sexual harassment in employment and occupation. The Committee welcomes the inclusion in the National Action Plan 2011–16 of measures addressing sexual harassment, such as “reviewing and implementing an anti-sexual harassment policy in the government sector institutions” and establishing a mechanism in order to “monitor the implementation of the anti-sexual harassment policy in the private sector”. The Committee also welcomes the new Code of Conduct and Guidelines to Prevent and Address Sexual Harassment in Workplaces developed in 2013 by the Employers’ Federation of Ceylon, in collaboration with the ILO, to which the Government refers in its report. The Code of Conduct is an important step in combating this serious form of sex discrimination, but is applied on a voluntary basis. In its report, the Government also refers to provisions in the Penal Code covering sexual harassment and states that there is no need for a separate law in this respect. The Committee considers that addressing sexual harassment only through criminal proceedings is normally not sufficient, due to the sensitivity of the issue and the higher burden of proof, which is harder to meet, especially if there are no witnesses (which is often the case). It also notes that the explanation provided under section 345 of the Penal Code refers to “a person in authority”. The Committee requests the Government to clarify the scope of section 345 of the Penal Code, indicating whether it only applies to sexual harassment committed by a person with authority or also by a co-worker, a client or a supplier of the enterprise. It further requests the Government to provide information on the following points:

• (i) the penal procedure to file a claim for sexual harassment in employment and occupation, in particular the rules regarding the burden of proof, and any measures taken to avoid victimization, as well as any relevant judicial decisions;
• (ii) any preventive measures taken by employers, in the private and public sectors, on the basis of the Code of Conduct; and
• (iii) the progress made in implementing the measures taken under the National Plan of Action 2011–16, in particular with respect to monitoring the implementation of the anti-sexual harassment policy in the private and public sectors.

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