harassment in the workplace

THE CODE OF GOOD PRACTICE ON THE PREVENTION AND ELIMINATION OF VIOLENCE AND HARASSMENT IN THE WORKPLACE

lagoudis lamberti attorneys sexual harassment in the workplace

Introduction

Until recently sexual harassment in the workplace was regulated by the Code of Good Practice on the Handling of Sexual Harassment Cases in Workplaces (the “Previous Code”). This Previous Code encouraged and promoted the development and implementation of policies and procedures that would lead to the creation of workplaces free of sexual harassment.

On the 18th of March 2022 however, the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the “Code”), came into effect. The Code, issued in terms of the Employment Equity Act (the “EEA”), expands on the Previous Code which in addition to the Previous Code addresses the prevention, elimination, and management of all forms of harassment in the workplace by providing guidelines to employers’ and employees on how to create workplaces where employees and employers’ integrity, dignity, privacy and right to equality is respected and the implementation on the appropriate policies and procedures to achieve this objective.

It is critical for all employers to familiarise themselves with the newly promulgated Code, identify the obligations imposed upon them thereby and ensure that the policies and procedures that they have in place comply substantially therewith or risk being found vicariously liable in terms of section 60 of the EEA.

Application

At the outset, it is important to note that the Code applies not only to employers and employees but also to job applicants, persons in training, volunteers, clients and customers, suppliers, contractors and others having dealings with the business and extends to any situation where the employee is working or which is related to their work which includes but is not limited to the public and private spaces from where people perform their work, social settings and work-related trips, work-related communications, employer-provided accommodation and employer-provided transportation.

Harassment

The Code defines harassment to be generally understood to be:

  • 1. unwanted conduct which impairs dignity;
  • 2. which creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences; and
  • 3. is related to one or more of the grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA.

This definition is a departure from the Previous Code’s narrower scope which solely provided for unfair discrimination prohibited on the grounds of sex, gender and sexual orientation. The Code has now extended its reach and includes an extensive list of behaviour constituting harassment including online harassment and harassment of racial, ethnic or social origin thereby better encompassing the diverse nature of all assorted forms of harassment.

Employer Obligations

The obligation to ensure that the workplace is free of harassment rests on the shoulders of the employer who is obliged in terms of the Code to take proactive and remedial steps to prevent all forms of harassment in the workplace.

The easiest and most effective way to accomplish this feat is for an employer to ensure that its policies and procedures substantially comply with the Code which conveniently provides for detailed guidelines on the appropriate procedures to deal with harassment and how to prevent its recurrence.

According to the Code, there are certain minimum requirements with which an employer’s policy must comply and should in essence set out the following:

  • 1. the informal and formal procedures to be followed by complainants when lodging a complaint and what these processes should include;
  • 2. the obligations that rest on an employer when a complaint is received including the relevant steps that employers are obliged to take thereafter;
  • 3. the counselling, care and support programs available to complainants; and
  • 4. certain particular statements.

An employer’s harassment policy should be effectively communicated to all employees and employers are further obliged in terms of the Code to implement training programs to educate employees on the subject.

Vicarious Liability

In South Africa, the principle of vicarious liability is applied. This means that employers may be held accountable for the wrongful actions of their employees committed during the course and scope of their employment and it, therefore, follows that employers may be held liable for acts of harassment committed by their employees.

In determining an employer’s vicarious liability a court will take into consideration whether or not had taken all reasonable steps to prevent the harassment and refer to the Code in its determination of what such reasonable steps would entail.

Conclusion

From the above, it is clear that employers are expected to create a workplace which is free from harassment. With the implementation of the expanded Code, the responsibility rests with each employer to assess whether its policies and procedures are Compliant with the Code.

For further assistance or advice, contact our founder Chari Lagoudis-Lamberti who will gladly assist with updating all your company policies.

The information as it appears in this Article is for the reader’s general information and not intended as legal advice or as a substitute for the specific advice of the reader’s own counsel.  Anyone seeking specific legal advice or assistance should consult an attorney.