It’s Not A Favour. Your Employer Owes You A Duty Of Care #Oxfam #MeToo #AidToo #ShePaysThePrice #TimesUp

 

13716249_980884165361607_8025600674350808537_nIt was difficult reading the IDC report on SEA in the Aid Sector. It took me three attempts to finally finish it. I cried twice.

Despite the many reassurances that the proposed Safe Guarding Summit in October 2018  would be victim focused the IDC’s discussions and recommendations seemed to focus on beneficiaries not staff, domestic or foreign, on reporting instead of victims and survivors care and well being and on programs retaining access in beneficiary countries. 

A lot of questions arose from my reading – 

What is the strategy for being victim focused? What does that mean? Will the summit treat staff and beneficiaries as a single category? Is the duty of care to beneficiaries greater than or less than the duty of care owed to staff? What duty of care do IAO’s owe national staff? If national staff conditions of employment are subject to national laws does that make IAO’s required to find out what laws are applicable and inform the national staff? What if national laws do not protect from SEA specifically? What should IAO’s do? What of international staff who are being told that their only protection may be in the jurisdiction of the country where the offence happened?

When IDC and the IAO’s say they want to involve and focus on victims and survivors, how will  they do this? And what? As objects? As subjects? What would be the questions and expectations? How will the victims and survivors be informed about their rights? Will they have legal representation? Because every IAO will have at least ten lawyers on speed dial. Is there tortious liability? Was there negligence? Will  they discuss and make commitments to victims legal rights and IAO’s legal obligations? 

Who represents the rights of African female workers? What sorts of protection do African female workers want? What sorts of protections and safeguards do international workers want? Whether the women are pink or brown what protection do they want? What does protection mean to them collectively and as diverse groups? At Oxfam national staff had unions? What is their role and relationship of national unions to the U.K. unions?

As I said the IDC report emphasised reporting and not immediate and urgent intervention to victims, both medical and legal. Sexual assault is a traumatic  experience. If a worker came in with a mangled hand no one would say ‘Go and tell HR before I treat your hand’ but the first response is usually questioning the complainants story. Sexual exploitation & abuse are the only traumatic events that are addressed with aspersions against the victim. There seems to be less concern for the victim than the abuser.

Its not enough to ask us to report sexual abuse and exploitation, past, present or future. Abusers past, present and future need to be held accountable. Its not enough to write you are doing everything to prevent SEA. Prevention can’t help us now. We want justice. We’re not crying out for sympathy. Telling our stories is not enough. We’re crying out for justice. Telling our stories has to mean something because the telling and retelling of it is also traumatic. You cannot  gawk at our humiliation, say ‘sorry’ then walk away with promises it won’t happen again, you must do something.

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By Favianna Rodriguez, contemporary US political poster designer of Afro-Peruvian heritage

Because I’m also a lawyer I decided to explore the legal aspects of SEA of staff. During my research I came across two possible grounds for liability – breach of duty of care and vicarious liability for sexual abuse. According to Kemp & Merkelbach in a 2011 policy paper  International Aid Organisations (IAO’s) are subject to the same legal rules as other large organisations and owe a duty of care to their employees, breach of which can be actionable and lead to liability. 

Excerpts From: Can you get sued? – November 2011 © SMI, Kemp & Merkelbach 

The ‘humanitarian enterprise’ is no longer a matter of well-intended philanthropy or charity but must be considered a global multi-billion dollar ‘business’.  9

The corollary is that IAOs are subject to the same basic ground rules as other enterprises – be they commercial, public or associative in nature – and thus subject to scrutiny irrespective of declarations of community-wide principles, standards and guidelines. 9

The premise of the research – developed and confirmed in the legal review – is that: 

Non-profit international humanitarian aid agencies are legally responsible for the safety and well-being of their staff, and can be held liable and are thus exposed to litigation on the basis of (national) law. 24

Generally speaking, employees are owed the highest level of responsibility as they have a reduced capacity to act voluntarily 28

IAOs can also be liable for the faults of their employees during the performance of their duties. This is known as vicarious liability. As a point of best practice, IAOs are advised to provide adequate training, instruction and supervision of its staff to minimise the risk of injury. 

Further, IAOs may be held liable for negligence at common law if it can be shown that:

      • a duty of care is owed to the claimant

      • breach of the duty of care

      • the organisation’s negligent conduct (including the conduct of its employees or agents under its control) caused actionable damage to the claimant

      • the damage suffered is not too remote  50

This principle was tested in a legal case heard in Norway in 2012. The claim was for compensation for economic and non-economic loss after a kidnapping and injury, by Steven Patrick Dennis against the Norwegian Refugee Council (NRC). The Court ruled in favour of Dennis, awarded damages, and found gross negligence on the part of the NRC. (There was, as appears from the judgment, no issue that the Norwegian courts had jurisdiction to hear the claim: Canadian Dennis’s contract of employment was with a Norwegian employer headquartered in Oslo. The parties proceeded on the basis that Norwegian law applied.) 

Can this principle apply to cases of sexual assault?

Terrence Donovan of Kingsley Napley thinks so and had this to say in answer to a question – 

Q. Can the Oxfam employees who claim they were assaulted by their managers in the UK bring cases for compensation? 

A: Yes, and they will be conventional personal injury claims.”

So from a legal perspective employees including volunteers who have been sexually assaulted while at Oxfam GB in the past 3 years may have actionable cause against Oxfam and should definitely and immediately see a personal injury lawyer in the U.K. In addition they may be able to apply for compensation under The Criminal Injuries Compensation Authority. Because I am not a U.K. citizen or resident I could not take advantage of these laws but there is legal remedy for sexual harassment in the workplace for Nigerian workers under human rights protections and for personal injury under the Employees Compensation Act 2013. Both actions would originate in the National Industrial Court of Nigeria. 

Another question is what effect a suit will have on a claimant? Will she still get to keep her job after filing such a claim for instance? Or could the employer threaten to withhold her reference if she file’s a claim? How will it affect future career prospects at another organisation? So obviously it is not a cut and dried proposition. I spoke to Steve Dennis about his experience. 

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Why is legal action important? It will make organisations more careful or force them to make speedy restitution/settlement. Nothing impacts organisational behaviour quite like liabilities – whether as settlements or higher insurance premiums. As a matter of fact I’m pretty sure the insurance companies will be the ones that will draft acceptable industry standards for preventing sexual assault eventually. A judgement will set powerful precedent and case law. It would reinforce statutory rights and extend legal rights.

It is not enough to ask victims and survivors to report. Something must happen. Once a formal report is made there must be priority protection and care for the complainant. There also need to be clear guidelines and standards for burden of proof. It should be mandatory for safeguarding staff to give standard legal advice to a complainant and discuss legal options in addition to in-house administrative procedures with the complainant as soon as the complainant is comfortable to do so.

IAO’s probably spend more on legal fees than they invest in safeguarding. 

Disturbingly I read several comments in the report saying sexual abuse and exploitation being common within the communities where the IAOs worked as if this somehow excuses the behaviour or the lukewarm attitude towards stopping it. It should not have been mentioned at all. Or if mentioned at all it should have been framed with the same paternalism that drives programming. IAO programs claim the moral high ground except when it involves sexual behaviour towards staff and of staff? What’s that?

Too often, INGOs have adopted a paternalist white saviour posture to VAWG/GBV and SRHR in developing countries, treating them as principally a problem of social norms and attitudes peculiar to the black and brown peoples of the Global South, with “their” harmful traditional practices, backward patriarchal cultures and failed states. By posing sexual violence and abuse in the South as a problem of the racialised other, and by contrast, presenting NGOs as white saviours, the sector has allowed itself to drift down a treacherously slow river of denial and obfuscation about its own sexual abuse problem until it has hit the fierce rapids of reality

– Nancy Kachingwe

Nancy makes a compelling case for intersectional feminist activism against SEA in her think piece for the GADN Network.   In her piece she lays out the ways in which feminist activism made VAWG/GBV a fundamental violation of women’s rights and the way feminists have been sidelined from decision making around VWAG/GBV. Feminist knowledge has been appropriated and made a cash cow for the industry that actually does little for women’s rights/empowerment. When I spoke to her she told me about women’s dissatisfaction with the response on the ground. She said no one is feeling safe and the power dynamics between NGO’s, donors, staff and consultants is preventing honest conversations.  The entire industry is propped up by money from IAOs like Oxfam. No body wants to rock the boat. No body can afford to rock the boat. The aid industry is just that and like I said in a previous post, the aid sector pays really well. You can do good and live well. 

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Nancy Kachingwe, Zimbabwe
If the aid sector has a safeguarding problem, it is firstly because it has a
misogyny problem — and a race problem, and a class problem, and an imperialism
problem.
– Nancy Kachingwe, Policy & Advocacy Advisor, South Feminist Alternatives

When I left my country shortly after burying my father in 2011 and travelled to the U.K. in the middle of those London riots to document the assault I experienced with the police I hoped it might corroborate any future allegations against Samuel Musa. Instead its one of hundreds of cases that happened at Oxfam and corroborates evidence of rampant sexism in the aid sector. The sector has a problem and not just individual employees that work there. Is it safe for women? According to Nancy, its not. More than 100 cases of assault were reported at Oxfam’s shops and offices in the U.K., some incidents involving minors and we are not witnessing a stampede of claims orchestrated by regulators, lawyers and the public? Imagine if …

The ‘Secret Aid Worker’ wrote  in the Guardian

If the humanitarian space is to practise what it preaches in terms of gender equality it needs to go further than investigating serious abuse and consider the sexism at the heart of many NGO work cultures.

Megan Rowling also writes the aid sector has a sexism problem . And Shaista Aziz agrees. Sexism and misogyny is preventing the legal resolution of SEA. While I may appreciate that the British public and the British government might not prioritise the just resolution of my case in particular since I am neither a British citizen nor resident, I would have thought they would more concerned about the fate of their own people. Or did someone set up a legal helpline already and I just don’t know about it? In the U.K. that is the response I would have expected. Almost 200 known victims.  Nancy’s analysis helped me understand the muted response.

Sexual violence and abuse have been treated as a low-priority issue, something swept under the carpet, almost taboo, because it threatens the imperialist and patriarchal interests of men at the top across the value chain. 

The charity sector according to the latest accounts and returns filed with the Charity Commission  had a total income of £76.7bn in the year to June 2018. An increase of £2.8Billion from last year. How much of this money is distributed by women? How much goes to women and women led organisations? Less than 1% of OECD assistance according to Nancy. Less than 1% of Canadian assistance according to a 2017 report by Canadian women’s funds.  Less than 1% of assistance aid the participants decided at the 2018 Feminist Republik that included donors. No matter how may inroads we make it still feels like A Boy’s Club. Boy’s Club was how everyone keeps on describing it. (I’m beginning to miss The Man’s World! Even though I grew up in a Woman’s World. I really look forward to a People’s World.)
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While some SEA cases may present jurisdiction challenges apparently not enough to say, exclude an Eritrean working for Oxfam GB in South Sudan from making a legal claim in the U.K. where OGB is based. Again see what Kemp & Merklebach have to say on the matter –

Indeed, employees are presumed to have only limited capacity to negotiate with their employer, so an agreement between the employer and the employee about a choice of law regarding a non- contractual liability made in advance of a potential claim is unlikely to be found to be “freely negotiated” and thus invalid.

In respect of contracts of employment, an agreement on jurisdiction will only be valid if: (i) it is entered into after the dispute has arisen, or; (ii) allows the employee to bring a claim in a court other than that of the member state that would have jurisdiction if the rules described above for employment contracts applied. Therefore, an exclusive jurisdiction clause in a contract of employment that is negotiated prior to, for example, an accident giving rise to a claim is likely to be ineffective.

Although personal injury claims are being made against IAOs it appears that many are settled out of Court and do not go as far as a Court decision because across the countries surveyed, reported Court decisions of such claims against IAOs are rare. The case studies referred to in this section, in the main, involve personal injury claims in the private sector. However, it is unlikely that the basic reasoning that the Courts would apply to IAOs would be substantially different.

Meanwhile, ‘international staff receive priority attention over national staff’ according to Kemp & Merkelbach (2011) –

For a significant proportion of IAOs, the contracting of national staff was decentralized to the field level. As a result, no uniformity exists and headquarters has no overview of the contractual situation of national staff. National staff contracts and inclusion of social welfare benefits as well as insurance depend upon the IAO’s country director/head of mission. Where headquarters guidelines do exist, a country director is expected to implement them. However, it was noted that there is no reporting requirement and that there is no headquarters control system to ensure that contractual guidelines and minimum standards are respected.

The discrepancy between consideration and treatment of international as compared to national/local staff poses fundamental ethical – as well as legal – problems that have only started to be addressed in the past few years. The question of health, safety & security of national staff has thus far remained underdeveloped despite genuine concern within the sector as to staff well-being.

This has far-reaching implications for IAOs and their operations, governance and executive, staff and their dependents, as well as for the sector as a whole. Since safety and security are not only an ethical and moral concern but a legal obligation, due safety and security are not mere personal, subjective matters of choice or conscience but must also answer to objective laws, regulations, standards and norms that can be objectively evaluated and are open to scrutiny – and can be enforced.

The IDC report mentioned but did not firmly condemn unfair employment practices both in the U.K and in Oxfam’s overseas programs including the practice of short term contracts that often leaves workers vulnerable and did not make any SMART recommendations  on eliminating the practice. Instead they recommended gender parity in this unfair environment.  I’m uncertain how the two correlate or how gender parity will relieve the unfair practice.

As  Elizabeth Griffin wrote in “The Ethical Responsibilities of Human Rights NGOs” –

“I find it astonishing that some human rights organisations and academic institutions teaching human rights still manage to avoid providing their employees with basic employment rights.”

Are women safe working for the aid sector?  Nancy says they do not feel safe. And a recent poll of aid workers from the north showed that more than 70% do not have confidence in the system.

 

Do short term contracts protect employers from personal injury claims?

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