As our readers will be aware, over the past twelve months, the Kingdom of Saudi Arabia has made unprecedented moves to open its economy to foreign investment and to adopt new social norms. Next week women will be lawfully permitted to drive and cinemas are opening across the country. In this context, the introduction of a new anti-harassment law is designed to ensure individual autonomy and security.
The new law was published in the Legal Gazette on 24 Ramadan 1439 H, equivalent to 8 June 2018. Decision 488 dated 14/9/1439H, comes into force on the day of its publication in the Official Gazette. Whilst harassment can be said to have long been unlawful under Islamic Sharia principles in the Kingdom (which adopts the Hanbali school of Islamic Sharia law), the new law strengthens the position regarding harassment and sets out clear penalties for violation of its provisions. Whilst a number of laws have been introduced in KSA to clarify criminal issues in the Kingdom (such as a criminal procedures law), KSA does not have a general written penal code.
The new law is far reaching in its application, as it is not restricted to women and applies to any individual regardless of gender. It aims to protect individuals from words, acts, implicit behaviour or innuendo of a sexual nature by one individual against another targeting that individual's body, modesty or personal life by any means including modern technology and communications. The law aims to protect an individual's dignity, privacy and personal freedom in accordance with Islamic Sharia rules and regulations
A duty to report
Any individuals suffering or witnessing alleged harassment are under a duty to report the allegations. Public authorities are also able to raise complaints in the public interest. All organisations whether government or non-governmental and in particular within an employment context are under an obligation to take steps to prevent harassment occurring.
In addition to any other potential penalty or punishment under general Islamic Sharia principles (which could include public lashing) or any other harsher punishment under other laws, penalties for breach of the law are:
- 2 year prison sentence and/or a fine of SAR 100,000;
- 5 year prison sentence and/or a fine of SAR 300,000 if the victim of the harassment is a child, a person of special needs, if the perpetrator was in a position of power or influence over the victim, if the harassment occurs at a place of work, education or child care, if the victim and the perpetrator are of the same sex, if the victim was sleeping or unconscious, or if the harassment occurs at a time of crisis, accident, or disaster.
Any person aiding or assisting harassment will be liable to the same punishment as if he or she had been the perpetrator of the harassment. Any person making a false complaint of harassment is also liable to the same punishment as if they had perpetrated the harassment. A person initiating harassment will be liable to half the potential penalty imposed on the actual perpetrator of the harassment.
Special Obligations on Employers under the Law
In an employment context, employers are under an express obligation to:
- Put in place an internal complaints mechanism and procedure;
- Put in place procedures to investigate complaints validity as well as ensure their confidentiality;
- Take remedial action with regard to any breaches of these policies and the obligations under this law on employers; and
- Not seek to prevent or replace (e.g. through trying to replace the criminal process under the law with an internal process) a victim's right to raise a complaint to the authorities regarding any harassment
Employers, Government and Non-Government authorities will now need to take steps to comply with the new law. Within an employment context, as well as taking the steps specified by the new law, employers should now also do the following:
- Train staff on their complaints process and the provisions of the new law, placing it within the context of workplace culture and codes of conduct;
- Remind staff of the provisions of the Model Work Regulations which require all employees to behave appropriately in the workplace;
- Consider whether other workplace policies need to be revised or highlighted for example dress codes, social media policies or confidentiality procedures; and
- Consider whistleblowing policies and procedures given the reporting duties under the Law as well as within the context of an increasing culture of compliance.