The 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace replaces the previous Code of Good Practice on Handling Sexual Harassment in the workplace.

\WHO DOES THE CODE APPLY TO?

The Code applies to all employers (including trade unions) in all sectors, including the informal sector. It also applies to anyone having dealings with an employer, for example, customers, clients, suppliers and volunteers. All employees are covered as well as unpaid volunteers, job seekers, job applicants and trainees. It also applies not only to the physical workplace but also to those who work remotely, travel to work with transport provided by the employer, those in training or staying in accommodation provided or paid for by the employer. It places obligations on employers and trade unions to prevent harassment, take disciplinary and other action when it happens, and provide various types of assistance to victims of harassment.

TYPES OF HARASSMENT

The Code includes:

• Physical harassment (physical attacks or threats)
• Verbal bullying (threats, shaming, hostile teasing, insults, constant negative judgement, constant criticism, racist, sexist or LGBTQIA+phobic language)
• Psychological abuse (emotional abuse)
• Online harassment, including cyber-bullying
• Harassment, teasing and insults based on someone’s race, sex or sexual orientation
• Bullying (use of power in the workplace)
• Intimidation that could cause someone to feel afraid they will be harmed
• Mobbing which is harassment by a group of people targeted at one or more individuals
• Any actions that can create a barrier to equity and equality in the workplace

WHAT IS HARASSMENT?

Harassment exists when conduct (of an employer, employee, customer, etc) is:

• Unwanted
• Creates a hostile working environment that is physically, emotionally or psychologically unsafe and affects employee well-being or mental health
• Is related to one of the prohibited grounds in the EEA.

The test for harassment is an objective one. If all these factors are present, then harassment is established and it will be up to the harasser, to defend the allegation. A defense could be that the alleged harassment is not discrimination or that it was justified in the circumstances. If a person is found guilty of harassment they could pay compensation, fines or even imprisonment.

VICARIOUS (INDIRECT) LIABILITY OF EMPLOYERS
Employers are also vicariously (indirectly) liable for the wrongful acts of their employees if these are committed in the course and scope of employment, unless it can prove that it has taken all reasonable steps to prevent this happening. So, for example, if an employee experiences harassment while travelling with work colleagues, the employer could be jointly liable for that.

AWARENESS AND INTENTION
An incident of harassment is seen from the perspective of the person who is laying the complaint. This means that even if the harasser wasn’t aware or didn’t have the intention to harass someone, it can still be unwanted and grounds for a complaint. The test is whether a reasonable person would have known that the conduct was harassment.

UNREASONABLE COMPLAINTS
The Code allows for an employer to show that the complainant’s perception is ‘not consistent with societal values reflected in the Constitution’.

RACIAL, ETHNIC OR SOCIAL ORIGIN HARASSMENT

Racial harassment is a form of unfair discrimination. The test for racial harassment is whether, on a balance of probabilities, the conduct complained of was related to race, ethnic or social origin or a characteristic associated with such a group. If a complaint of racial harassment is made, the employer must take the following factors into account: Was the conduct persistent and harmful Was the language or conduct abusive, demeaning, or humiliating and did it offend the dignity of the person or create a hostile working environment Was the language or conduct directed at a particular employee(s) Was the language or conduct insulting, abusive or derogatory The extent of the abuse or humiliation to a person’s dignity The impact of the conduct

WHAT MUST THE EMPLOYER DO IN CASES INVOLVING HARASSMENT?

Employers are required in terms of the Code to adopt a zero-tolerance approach to harassment. It needs to do the following:

• Develop an harassment policy in consultation with employees and their representatives that includes steps to be taken to prevent harassment and actions to follow if there is a complaint of harassment
• Provide training and awareness for employees, including:
  • Informing them of the harassment policy
  • Making the reporting mechanisms clear
  • Making the harassment policy available on all the company platforms
  • Creating ongoing awareness about the duty to report harassment
• Establish a committee that will investigate claims of harassment and provide them with relevant training

HARASSMENT POLICIES AND PROCEDURES

The Code requires the employer to adopt a Harassment Policy and says what should be included in this policy, for example:

• That harassment constitutes unfair discrimination, that it infringes the rights of the complainant and that it represents a barrier to equity in the workplace;
• That harassment in the workplace will not be permitted or condoned;
• Complainants have the right to follow the procedures in the policy and appropriate action must be taken by the employer;
• That it will constitute a disciplinary offence to victimize or retaliate against an employee who in good faith lodges a grievance of harassment.

The policy should also outline the steps and procedures to be followed by a complainant who wants to lodge a harassment complaint or grievance. The Code sets out the procedures that should be followed when a complaint of harassment is made.

PROCEDURES FOR DEALING WITH COMPLAINTS OF HARASSMENT

The Code says the following procedures should be included in the policy:

Reporting harassment: Conduct involving harassment must immediately be reported to the employer. ‘Immediately’ means as soon as is reasonably possible in the circumstances and without delay, taking into account the nature of harassment (as a sensitive issue), the fear of a negative response, and the positions of the complainant and the alleged harassor in the workplace. The employer must:

• Consult the parties
• Take steps to address the complaint
• Take steps to stop the harassment

IMPLEMENTING FORMAL PROCEDURES WITHOUT THE CONSENT OF THE COMPLAINANT

The Code says that a complainant can choose to follow a formal procedure or an informal procedure. If the complainant chooses NOT to follow a formal procedure, the employer should still assess the risk to other people in the workplace. The employer must take into account all relevant factors, including:

• How serious the alleged harassment was, and
• Whether the alleged harassor has a history of harassment.

If the employer believes after a proper investigation that there is a serious risk of harm to the people in the workplace, they can choose to follow a formal procedure, regardless of what the complainant wants. The complainant must obviously be informed of this.

WHEN IS AN EMPLOYER LIABLE IN A CASE OF HARASSMENT?

If an employer is liable for harassment this could have severe financial implications.

Section 60 of the EEA says that if an employee, while at work, engages in any conduct that goes against the Act (for example, harassment), then the conduct must immediately be brought to the attention of the employer.

The employer must consult all relevant parties and take necessary steps to stop the conduct. If the employer fails to take the necessary steps and it is proved that the employee is guilty of harassment, then the employer could be vicariously liable for the conduct.

However, if the employer can prove that they did everything reasonably possible to create an environment free of harassment, for example, by adopting a harassment policy and communicating this to the workplace, then these actions could shift the liability of the employer.

COMMON LAW

An employer can be liable in terms of the common law if they do not provide a safe working environment. In the Media 24 Ltd and another v Grobler case, the court held that the employer has a legal duty to take reasonable steps to prevent sexual harassment of its employees in the workplace and is obliged to compensate the victim for harm caused because of this. The court also said that if a person gets Post-Traumatic Stress Syndrome arising out of or in the course of employment, the victim would have to claim compensation under the COIDA and would not be able to proceed with a civil claim against the employer.

WHAT IS THE ROLE OF A TRADE UNION IN DEALING WITH HARASSMENT IN THE WORKPLACE?

Management has certain obligations in terms of the Code which the trade union needs to see are enforced. These include to:

• Adopt a Harassment Policy in line with the 2022 Code – The Code does not say how a policy should be adopted but certainly it should be done in consultation with union representatives and employees. The failure to adopt a workplace policy could impact on the employer’s liability in the future.
• Communicate the policy to employees – An employer must communicate the policy effectively to employees. The employer must therefore take active steps to provide education and training on harassment and people’s rights and obligations in the workplace.
• Conduct investigations – When management is informed of a harassment complaint it must:
  • Consult all relevant parties
  • Take necessary steps to address and eliminate the harassment; these steps include informing the complainant that they can follow formal or informal procedures to deal with the complaint
  • Offer the complainant advice, assistance and counseling
  • Advise the complainant of the procedures to follow whether this is in an informal or formal way
• Create an environment that is free of harassment – Management, together with the union, must aim to create an environment that is free of harassment by having a Harassment Policy; communicating the policy to employees, and dealing effectively – in terms of the policy – with cases brought to its attention. This obligation also means implementing formal procedures where the risk is serious to other employees (even where the complainant has no wish to proceed with action).

SEXUAL HARASSMENT  

WHAT IS SEXUAL HARASSMENT?

Sexual harassment is defined in the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace 2022 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:

1. Was the conduct on prohibited grounds (sex, gender or sexual orientation)?
2. Was it unwelcome? Ways to show behaviour is unwelcome include verbal and non-verbal actions like walking away or not responding to the harassor.
3. What was the nature and extent of the sexual conduct? The conduct can be physical, verbal or non-verbal:
   1. 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.
   2. 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.
   3. 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 them, or sexual favouritism – ‘rewards’ for sex.

4. 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 the employee and the positions of power between the victim and the alleged harasser.

SEXUAL HARASSMENT AS A FORM OF UNFAIR DISCRIMINATION

The Code says that sexual harassment is a form of unfair discrimination and that harassment on the grounds of sex and/or gender and/or sexual orientation is prohibited.

TEST FOR SEXUAL HARASSMENT

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 the ‘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 harasser 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.

Cases involving sexual harassment must be dealt with in terms of the company’s harassment policies and procedures.