Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Kuwait (Ratification: 1966)

Article 1 of the Convention. Definition and prohibition of discrimination in employment and occupation. Legislation and practice. For a number of years, the Committee has been urging the Government to take the necessary measures to explicitly prohibit direct and indirect discrimination based on race, sex, colour, religion, political opinion, national extraction and social origin: with respect to all aspects of employment and occupation, namely access to vocational training, employment and particular occupations, and terms and conditions of employment; and covering all workers (that is, both nationals and non-nationals, in all sectors of activity, in the public and the private sectors, and in the formal and informal economy). The Government indicates in its report that Labour Law No. 6 of 2010 provides in sections 2 and 6 for the principle of equal treatment for all workers, as section 2 provides that “[t]he provisions of this Law shall apply to all workers in the private sector” and section 6 establishes that, “[w]ithout prejudice to any more advantageous benefits and rights granted to workers in individual or collective contracts, special regulations or by-laws observed by the employer or in accordance with professional or general customs, the provisions of this Law shall represent the minimum level of workers’ rights.” Section 46 provides that: “The service of the worker shall not be terminated without any justification or as a result of his activity in the syndicate or a claim or his legal rights in accordance with the provisions of the law. The service of the worker may not be terminated for reason of gender, race or religion.” The Committee takes due note of section 46 of the Labour Law, which prohibits discrimination in the case of termination of employment on the basis of three grounds, namely gender, race and religion. However, the Committee recalls in this respect that the prohibition of discrimination in employment and occupation must cover all aspects of employment and occupation and encompass the seven prohibited grounds of discrimination listed in Article 1(1)(a) of the Convention. The Committee once again urges the Government to take the necessary measures without delay to: (i) explicitly prohibit in the Labour Law direct and indirect discrimination based on race, sex, colour, religion, political opinion, national extraction and social origin with respect to all aspects of employment and occupation, including recruitment, and covering all workers; and (ii) ensure that all workers are protected in practice against all forms of discrimination, in employment and occupation, and provide full information in this respect.

Article 1(1)(a). Discrimination based on sex. Sexual harassment. The Committee recalls that the Government referred in a previous report to sections 191 and 192 of the Penal Code, which establishes the offence, subject to penalties, of “dishonouring another person under threat, by force or deceit”. For a number of years, the Committee has been emphasizing that addressing sexual harassment only through criminal proceedings is not normally sufficient, due to the sensitivity of the issue, the higher burden of proof, which is harder to meet, and the fact that criminal law generally focuses on sexual assault or “immoral acts”, and not the full range of behaviour that constitutes sexual harassment in employment and occupation (2012 General Survey on the fundamental Conventions, paragraph 792). In its previous comment, it therefore asked the Government to adopt provisions: (1) defining and prohibiting both quid pro quo and hostile working environment sexual harassment; and (2) establishing remedies and sanctions. In the absence of further information on these points, the Committee recalls once again that the provisions of the Penal Code do not address the full range of behaviour that constitutes sexual harassment in employment and occupation and that criminal proceedings are not normally sufficient to eliminate sexual harassment in these specific areas. The Committee also recalls that sexual harassment is a serious manifestation of sex discrimination and a violation of human rights, and requires effective measures to prevent and prohibit it, which should address both quid pro quo and hostile environment sexual harassment (2012 General Survey, paragraph 789). The Committee further notes that in its 2017 concluding observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern at the absence of legislation criminalizing sexual harassment in the workplace and recommended the amendment of the Private Sector Labour Act, the Civil Service Act and the Police Force Order Act in order to criminalize sexual harassment in the workplace and ensure effective access to legal redress for victims of sexual harassment (CEDAW/C/KWT/CO/5, paragraphs 36 and 37). In light of the above, the Committee once again urges the Government to take the necessary measures to ensure that a comprehensive definition and a clear prohibition of both forms of sexual harassment (quid pro quo and hostile work environment) in employment and occupation is included in the Labour Law. It also asks the Government to: (i) take preventive measures, including awareness-raising initiatives on sexual harassment in employment and occupation and on the social stigma attached to this issue, among workers, employers and their respective organizations, as well as law enforcement officials, including the respective procedures, compensation and penalties; and (ii) provide information on the number, nature and outcome of cases of sexual harassment in employment and occupation dealt with by labour inspectors, the courts or any other competent authority.

Migrant workers. Sponsorship system. The Committee previously noted that Kuwait’s sponsorship system (kafala), under which the legal status of migrant workers is tied to their employers, who act as their sponsors for obtaining a visa, has not been abolished, and it requested the Government to provide information on the concrete steps taken or envisaged to review the sponsorship system. It notes that the Government’s report is silent on this subject. In this respect, the Committee notes that, in its 2017 concluding observations, the CEDAW recommended the Government to “continue efforts to completely abolish the kafala (sponsorship) system” (CEDAW/C/KWT/CO/5, paragraph 37). The Committee wishes to underline that, where a system of employment of migrant workers places those workers in a particularly vulnerable position and provides employers with the opportunity to exert disproportionate power over them, this could result in discrimination based on the grounds enumerated in the Convention, including race, colour, national extraction and sex (2012 General Survey, paragraph 779). The Committee asks the Government to take proactive steps to ensure that all migrant workers, including women migrant workers, enjoy effective protection against discrimination on the grounds set out in the Convention, namely race, colour, sex, religion, political opinion, social origin and national extraction. The Committee also asks the Government to provide statistical information on the number of men and women workers who have submitted complaints against their employers or sponsors regarding discrimination and abuse, and the outcome of the cases, indicating whether they have requested and been granted a change of workplace.

Stateless persons or residents without nationality (Bidoons). In its previous comments, the Committee asked the Government to provide information on: (1) the results of the implementation of the road map adopted by the Council of Ministers (Resolution No. 1612/2010); (2) the measures taken to ensure that all stateless persons or residents without nationality (Bidoons) are protected against discrimination in employment and occupation, including in access to employment, on the grounds set out in the Convention; and (3) to provide statistical information on the number of Bidoons living in the country and on their employment status. The Government indicates that the Central System, within the meaning of Law No. 68 of 2015, for stateless persons and residents without nationality, who are referred to by the Government as “illegal residents”, is working intensively on the implementation of the road map, in addition to providing civil, cultural and social services and facilities for stateless persons. The Government adds that, by virtue of the Council of Ministers Decision No. 309 of 2011, the Central System provides numerous services to “illegal residents”, including free education, free treatment and issuing all official documents (birth and death certificates, marriage and divorce contracts and authentic certificates). Collaboration is also ongoing between the Central System and the Civil Service (Diwan), the Public Authority, the Federation of Cooperative Societies and the Kuwait Ports Authority. The collaboration has resulted in jobs being found for stateless people in response to the needs of the labour market. According to the Government, 324 stateless persons were appointed to government bodies and 600 were appointed to the Kuwait Petroleum Corporation and its companies in 2018. In addition, with the collaboration of the Ministry of Defence, some of them were enrolled in the military. The Committee notes the measures taken by the Government to provide employment for stateless persons and residents without nationality, but points out that it does not indicate how they are protected against discrimination in employment and occupation. The Committee asks the Government to: (i) take the necessary measures to ensure that all stateless persons and residents without nationality (Bidoons) are protected in practice against discrimination in employment and occupation based on the grounds prohibited by the Convention in access to education, vocational training and employment; and (ii) provide more detailed information on the results of the implementation of the road map adopted by the Council of Ministers (Resolution No. 1612/2010).

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continues to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 2. National equality policy. In the absence of information on the progress made in the adoption of a national equality policy, the Committee recalls that: (1) the primary obligation of ratifying States is to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation with a view to eliminating any discrimination; and (2) the implementation of a national equality policy presupposes the adoption of a range of specific measures, which often consist of a combination of legislative and administrative measures, collective agreements, public policies, affirmative action measures, dispute resolution and enforcement mechanisms, specialized bodies, practical programmes and awareness-raising (2012 General Survey, paragraphs 841 and 848). The Committee therefore once again asks the Government to take the necessary measures to formulate, in collaboration with employers’ and workers’ organizations, and adopt a national equality policy covering all workers aimed at eliminating discrimination in employment and occupation on all the grounds covered by the Convention. The Committee requests the Government to provide information on the progress made in this regard.

Article 5. Special protection measures. Work prohibited for women. In its previous comments, the Committee noted the Government’s indication that sections 22 and 23 of the Labour Law, which prohibit the employment of women at night, with some exceptions, and in work that is hazardous, arduous or harmful to health or violates public morals, are intended to protect women workers in general, and particularly pregnant women. The Committee requested the Government to take measures to ensure that protective measures applicable to women are limited to maternity protection in the strict sense, or based on occupational safety and health (OSH) risk assessments and do not constitute obstacles to the employment of women. The Government’s report does not contain any information in this respect, except a reference the provisions of Chapter 4 of the Labour Law on maternity protection and occupational safety and health. The Committee once again recalls that protective measures for women may be broadly categorized into those aimed at protecting maternity, in the strict sense, which come within the scope of Article 5, and those aimed at protecting women generally because of their sex or gender, based on stereotypical perceptions about their capabilities and appropriate role in society, which are contrary to the Convention and constitute obstacles to the recruitment and employment of women. The Committee further recalls that it considers that provisions relating to the protection of persons working under hazardous or difficult conditions should be aimed at protecting the health and safety of both men and women at work, while taking account of gender differences with regard to specific risks to their health (2012 General Survey, paragraphs 839 and 840). Therefore, any restrictions on women’s access to work based on health and safety considerations must be justified and based on scientific evidence and, when in place, must be periodically reviewed in light of technological developments and scientific progress to determine whether they are still necessary for protection purposes. The Committee urges the Government to: (i) review its approach regarding restrictions on women’s employment in light of the above principles to ensure that any protective measures taken are limited to maternity protection in the strict sense, or are based on occupational safety and health risk assessments and do not constitute obstacles to the employment of women; and (ii) supply information on any developments in this regard.

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