The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace came into effect on 18 March 2022. It repeals and replaces the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, 2005.
This far reaching, open-ended Code is intended to address the prevention, elimination and management of all forms of harassment in the workplace and in any activity linked to or arising out of work, including sexual, racial, ethnic or social origin harassment.
The Code emphasises that in terms of section 6(3) of the Employment Equity Act 55 of 1998 (EAA), any form of harassment of an employee constitutes unfair discrimination and a barrier to equity and equality in the workplace.
To whom does the code apply?
The Code applies to all employers and employees as provided for in the EEA and includes applicants for employment and volunteers who assist a business.
It also states that an employer is regarded as a person who employs another person, regardless of whether they operate in the formal or informal sector, and whether or not they operate a commercial undertaking.
It recognises that many different individuals could become victims or be perpetrators of harassment, including but not limited to, clients, suppliers, contractors and people interacting with the business.
Where does the code apply?
The Code applies in any situation where an employee is working or which is related to their work.
This includes work-related trips, events or social activities; work-related communications including online platforms; when commuting to/from work in transport provided or controlled by the employer; and, if working virtually, the place where the employee is working.
What is harassment?
Harassment is defined in the Code as unwanted conduct which impairs dignity, creates a hostile or intimidating work environment or has the effect of inducing submission through actual or threatened adverse consequences. It is related to one or more of the grounds of discrimination which are prohibited in terms of section 6(1) of the EEA.
Harassment includes psychological, emotional, sexual, gender-based and racial abuse. It also includes the use of physical force, whether threatened or actual, against another person.
The Code recognises that harassment is an abuse of power and is more likely to affect vulnerable employees. It also recognises that the intersection of factors such as race, religion, gender or disability may increase the risk of harassment.
How is harassment assessed?
One of the most challenging issues for employers arising from the Code will be to determine whether the specific conduct that an employee complains of does in fact amount to harassment.
In this regard, the Code states that the question of whether or not conduct constitutes harassment should be assessed objectively, but from the perspective of the employee who alleges harassment.
The primary focus of the enquiry is on the impact of the conduct on the employee. This suggests that the enquiry as to whether or not conduct that is complained of constitutes harassment will entail an element of subjectivity.
The Code also provides that it is not necessary to establish intention on the perpetrator's part, although this may be an aggravating factor when considering sanction.
What are some practical examples?
Because the Code is so broad, almost any conduct which meets the criteria may be found to be harassment, for example:
- Spreading rumours
- Intolerance of psychological, medical or other personal circumstances
- Withholding work-related information or supplying incorrect information
- Sabotaging or impeding the performance of work
- Surveillance of an employee without their knowledge with harmful intent
- Use of disciplinary or administrative sanctions without objective cause or efforts at solving the problem
The Code specifically refers to a number of new forms of harassment, such as passive-aggressive or covert harassment, which may include negative gossip or joking at someone's expense, sarcasm and condescending eye contact, facial expressions or gestures.
It also recognises the creation of a hostile work environment, mobbing (bullying of an individual by a group) and online harassment as additional forms of harassment.
The Code also provides specific definitions for and guidelines on sexual harassment and racial, ethnic and social origin harassment. It sets out detailed lists of factors to be considered in establishing whether this sort of harassment has occurred and examples of the forms that this harassment may take.
What should employers do now?
Employers should adopt a zero tolerance approach to harassment. Complainants should not be made to feel that their grievances are ignored, trivialised or could attract reprisals. This can be achieved through the implementation of harassment policies and procedures aimed at preventing and responding to complaints of harassment.
The Code provides guidelines on the contents of these policies and extensive guidelines on the procedures to be followed where an employer receives a complaint of harassment.
In terms of section 60 of the EEA, employers are obliged to take both proactive and remedial steps to prevent all forms of harassment in the workplace. This includes an assessment of the risk of harassment that employees face while performing their duties.
Failure to take all reasonably practicable steps to ensure that harassment does not occur may result in the employer being vicariously liable for the perpetrator's conduct.
The Code provides broad general guidelines to assist employers in combatting and effectively addressing all forms of harassment in the workplace. Although it is a guide and is not legally binding, employees will undoubtedly rely on it and employers are likely to see an increase in claims of harassment now that it has come into effect.
It is strongly recommended that employers ensure compliance with the Code and other labour legislation when dealing with harassment cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
