Workplace harassment – employers to take note of their obligations under new Code of Good Practice

Introduction
Key takeaways

Introduction

The minister of employment and labour has published the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) in terms of the Employment Equity Act (EEA). The Code became effective on 18 March 2022 and repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.

The publication of the Code follows South Africa's ratification of the International Labour Organization's Convention on the Elimination of Violence and Harassment in the World of Work in November 2021. The convention obliges ratifying states to adopt an inclusive, integrated and gender-responsive approach to violence and harassment in the workplace. Guided by the convention, the Code seeks to address the elimination and prevention of all forms of harassment (and not just sexual harassment) that pervade the workplace.

Key takeaways

The Code provides guidance to employers and employees on the elimination and prevention of harassment as a form of unfair discrimination in the workplace. In this regard, the eight key takeaways from the Code are as follows:

• The Code applies to all employers and employees irrespective of whether they operate in the formal or informal sector. In determining whether a person is an employee for the purposes of the Code, the presumption in section 200A of the Labour Relations Act is applicable. Volunteers and applicants for employment also fall within the definition of an employee.
• Perpetrators and victims of harassment extend beyond just employees and employers and may include:
  • apprentices;
  • contractors;
  • clients;
  • customers;
  • interns;
  • job applicants;
  • managers;
  • owners;
  • suppliers;
  • volunteers; and
  • any other persons who have dealings with a business.
• The Code makes it clear that the protection of employees against harassment applies in any situation in which the employee is working, or which is related to their work. In other words, harassment does not only occur when employees are on duty at the physical workplace but extends to:
  • work-related trips;
  • training or social activities;
  • work-related communications;
  • employer-provided accommodation;
  • commuting to and from work in transport provided by the employer; or
  • the location of employees who are required to work virtually.
• The Code deals with the concept of harassment broadly and highlights sexual harassment and racial, ethnic or social-origin harassment as specific forms of harassment.
• While the term "harassment" is not defined in the EEA, the Code provides that the term is generally understood to be unwanted (or unwelcome) conduct that:
  • impairs dignity;
  • 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
  • is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA.
• The Code recognises that harassment includes:
  • violence;
  • physical abuse;
  • psychological abuse;
  • emotional abuse;
  • sexual abuse;
  • gender-based abuse; and
  • racial abuse.

It includes the use of physical force or power, whether threatened or actual, against another person or against a group or community. Further, the intersection of factors such as race, religion, gender or disability increases the risk of harassment in the workplace.

• The Code makes reference to other statutes that are relevant and that employers are required to comply with in order to prevent violence and harassment in the workplace, including:
  • the Promotion of Equality and Prevention of Unfair Discrimination Act;
  • the Labour Relations Act;
  • the Occupational Health and Safety Act; and
  • the Protected Disclosures Act.
• Employers are obliged to take proactive and remedial steps to prevent all forms of harassment in the workplace. In terms of the Code, this includes:
  • conducting an assessment of the risk of harassment to employees;
  • implementing an appropriate policy addressing harassment;
  • conducting training to educate employees about the various forms of harassment; and
  • implementing ongoing awareness programmes.

The Code accordingly introduces new requirements that employers will be required to adhere to, failing which they may be found liable in terms of section 60 of the EEA.

For further information on this topic please contact Nadine Mather at Bowmans Law by telephone (+27 21 480 7800) or email ([email protected]). The Bowmans Law website can be accessed at www.bowmanslaw.com.