Sexual harassment is defined in the Code of 2005 as unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace and takes into account the following factors:

(a) Was the conduct on prohibited grounds (sex, gender or sexual orientation)?

(b) Was it unwelcome? Ways to show behaviour is unwelcome include verbal and non-verbal actions like walking away or not responding to the harassor.

(c) What was the nature and extent of the sexual conduct? The conduct can be physical, verbal or non-verbal:

• Physical includes unwelcome physical contact ranging from touching to sexual assault and rape as well as strip search by or in the presence of the opposite sex.

• Verbal includes unwelcome suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body made in their presence or to them, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and sending sexually explicit text by electronic means or otherwise.

• Non-verbal includes unwelcome gestures, indecent exposure and displaying or sending sexually explicit pictures or objects.

The conduct can also be victimisation where a person gets victimised for failing to respond to sexual advances and the intention is to humiliate him or her; or sexual favouritism – ‘rewards’ for sex.

(d) What was the impact on the employee? This is a subjective test and involves looking at the effect of the action on the victim’s dignity. It takes into account the circumstances of employee and the positions of power between the victim and alleged harassor.