The Code defines which factors must be taken into account when deciding whether an action constitutes unwelcome conduct. It gives guidelines as to what constitutes sexual harassment and explains what is understood by ‘nature and extent’ of the conduct (see definition of ‘unwelcome conduct’).

When it comes to the impact of the conduct, the code says the conduct must be an impairment of the employee’s dignity. The relevant considerations here are the circumstances of the employee and the positions that the employee and the alleged harassor hold in the organisation. When assessing the impact of the conduct, the test is a subjective one where the focus is not only on the actions that constitute sexual harassment, but more substantially on the effects and the circumstances surrounding these actions. So, it requires the employer to look at the psychological impact of the sexual conduct on an employee and not only at how an objective person might judge the action.

Digital harassment is also conduct that can constitute sexual harassment.