Workplace harassment in South Africa is governed by several Acts, among them the Employment Equity Act. To help practitioners understand and implement the requirement of this Act, the government publishes a number of Codes of Good Practice.
Although these codes are not binding laws, it’s important to take them into account since inspectors and judges use them as a guideline when determining whether an organisation is compliant.
The 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace replaces the original 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in Workplaces. In the name itself lies a clue to one of the most significant changes in the new Code – a far broader definition of harassment that extends far beyond sexual harassment.
Let’s explore this new definition, as well as other key changes and employers’ new obligations.
A new understanding of harassment in the workplace
Impact 1: A far broader range of actions constitute harassment
The code has an exceptionally broad definition of harassment. It includes what one would expect – physical harassment (both actual and threatened), verbal bullying and psychological abuse – but additional and perhaps more surprising examples of harassment have also been included.
|Slander and spreading rumours
|Condescending eye contact, facial expressions or gestures
|Racist, sexist or LGBTQIA+ phobic language
|Gossiping or joking at someone’s expense
|Conduct that humiliates, insults or demeans
|Social exclusion or marginalisation
|Sabotaging or impeding work performance
|Abuse or selective use of disciplinary proceedings
|Pressuring an employee to not exercise their legal rights
|Pressuring an employee to resign
|Surveillance of an employee without their knowledge and with harmful intent
|Intolerance of a psychological, medical, disability or personal circumstance
|Withholding work-related information or supplying incorrect information
Impact 2: Harassment can be a once-off or repeated event
The code explains that harassment can occur as a result of a pattern of consistent conduct, or a single event. In other words, where the conduct is of a serious nature, a single instance is sufficient to constitute harassment.
Impact 3: Harassment can occur to anyone who has dealings with the business
The code recognises that managers, supervisors and employees are not the only possible perpetrators and victims of harassment. Victims and perpetrators could include a number of additional role players, all of whom are covered under the Code.
|Job seekers and job applicants
|Interns, apprentices and people on learnerships
|Suppliers and contractors
|Clients and customers
|All others who have dealings with the business
Impact 4: Harassment can occur in any work-related environment
Employees must be protected in any situation that is related to their work, including the following:
|Public and private spaces in the workplace
|Home office (in the case of remote working)
|Places where employees rest, eat or receive medical treatment
|When commuting to and from work in transport provided or controlled by the employer
|Work-related trips, training, events and social activities
Employers’ new obligations under the code
Employers have a legal obligation to take proactive and remedial steps to prevent all forms of harassment in the work environment. To meet these requirements (and ensure your adherence to the Code) we recommend the following steps:
Step 1: Get the HR department up to speed
Reading this article is just the starting point – your HR department will need to get to grips with the full content of the 30-page code and all its various requirements. This is likely to require an in-depth training course or even a facilitated session by an expert.
Step 2: Conduct a risk assessment
The code requires that organisations assess the risk of harassment that employees are exposed to while performing their duties. This should include identifying historical and current risks, and compiling a risk register with appropriate mitigating measures.
Step 3: Compile or update your harassment policy
If your previous harassment policy extended beyond sexual harassment, you’re already one step ahead. If not, you’ll probably need to start from scratch.
The code requires your harassment policy to contain some very specific statements, and it’s best practice to include the following as well:
- A clear statement of your position regarding harassment, and especially that you have a zero-tolerance approach towards harassment
- Your commitment to creating and maintaining a work environment in which the dignity of employees and others who have dealings with the business is respected
- A description of the reporting procedure, and confirmation that those who raise complaints will not be victimised
- A description of the action that will be taken in the case of harassment, up to and including the disciplinary process (the Code has some specific requirements in this regard)
- A description of the counselling, treatment, care and support programmes for perpetrators and victims of harassment
Step 4: Drive awareness
Everyone who has dealings with your business should understand your position regarding harassment.
- You must ensure that employees are educated about their rights and responsibilities in terms of the code
- Employees and others (such as suppliers and contractors) must be taken through your harassment policy
- The harassment policy will need to be loaded onto all relevant company platforms
- You’ll need to create ongoing awareness of what constitutes harassment and the duty to report it