Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Botswana (Ratification: 1997)

Article 1 of the Convention. Legal protection from discrimination. Grounds of discrimination. Covering all aspects of employment. The Committee notes that section 23 of the Employment Act (restricting the grounds on which employers may terminate contracts of employment) was amended in 2010, so as to explicitly include in the list of prohibited grounds for termination of employment, “sexual orientation”, “health status” and “disability”, and at the same time removing from this list “national extraction” and “political opinions” (section 23(d)), and to insert a general provision (new section 23(e)). The Committee notes therefore that under the Employment Act as amended, termination of employment is now prohibited on the basis of : (i) “the employee’s membership of a registered trade union or participation in any activities connected with a registered trade union outside working hours or, with the consent of the employer, within working hours” (section 23(a)); (ii) “the employee’s race, tribe, place of origin, social origin, marital status, gender, sexual orientation, colour, creed, health status or disability” (section 23(d) as amended); or (iii) “any other reason which does not affect the employee’s ability to perform that employee’s duties under the contract of employment” (new section 23(e)). The Committee also notes that in accordance with the Code of Good Practice: Employment Discrimination, which was approved on 23 August 2002, discrimination is prohibited on the basis of “but not limited to” race, tribe, place of origin, national extraction, social origin, marital status, political opinions, sex, colour or creed (section 3.2). The Code of Good Practice further indicates that there may be other grounds such as religion, HIV status, family responsibility, language, etc. While noting the general prohibition of discrimination added to the Employment Act, the Committee recalls that where legal provisions are adopted to give effect to the principle of the Convention, they should specify at least all the grounds of discrimination set out in Article 1(1)(a) of the Convention and cover all aspects of employment and occupation, including training, recruitment and selection and all terms and conditions of employment. Given that there are grounds specifically enumerated in the Employment Act, and the grounds of “national extraction” and “political opinion” have been expressly removed from this list, the Committee notes that it is of particular importance that all the grounds set out in Article 1(1)(a) of the Convention are specifically addressed in the Act. The Committee asks the Government to take the necessary steps to amend section 23(d) of the Employment Act in order to prohibit explicitly discrimination based on at least the grounds of race, colour, sex, religion, political opinion, national extraction and social origin, and to cover all aspects of employment and occupation, including recruitment and terms and conditions of employment. The Committee asks the Government to provide information on the measures taken in this respect. The Committee also asks the Government to provide information on the application in practice of section 23(e) of the Employment Act, including any interpretation by the administrative or judicial authorities. The Government is also asked to provide information on any steps taken to foster knowledge among workers and employers and their organizations of the code of good practice on employment discrimination.

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