The new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace which was published on 18 March 2022, is a lengthy document with a lot of examples of conduct that could potentially constitute workplace harassment. We foresee that this may cause some confusion amongst employers and employees in terms of actions that may be 'in the Code', but that do not necessarily amount to harassment in the legal sense. This Code replaces (and incorporates) the previous Code on Sexual Harassment.
Legal exposure - Workplace harassment is a form of unfair discrimination, linked to the prohibited grounds set out in s6(1) of the Employment Equity Act. In addition, it could give rise to criminal or civil litigation and the employer may be held vicariously liable for the actions of a perpetrator in its employ if it had failed to take appropriate steps within a reasonable time after an internal complaint had been lodged. Section 60 of the Employment Equity Act specifically requires an employer to take proactive and remedial steps to prevent all forms of harassment in the workplace. The contents of the new Code and the employer's compliance with it, will be taken into consideration whenever a court has to consider if the employer has fallen foul of its obligations under s60.
Victims and perpetrators - Importantly, the Code applies broadly not only to employees and on the employer's premises, but basically in respect of any person who has dealings with the organisation - including third parties such as contractors, suppliers, customers, job applicants, volunteers, etc.
The workplace is defined equally broadly to include all public and private spaces where an employee works, including work-related travel, social or training events, remote working, accommodation provided by the employer, employer-controlled transport to and from work, and work-related communications.
What should employers do about this?
The Code requires employers to do a risk assessment (probably the best starting point), to assess the potential possibility of harassment to persons in its workplace.
Employers will then have to review or expand on their existing policies and procedures to incorporate the new provisions from the Code and the results of their risk assessment, in order to demonstrate their compliance with s60 of the EEA in case of a legal challenge. It is required for the employer to have a harassment policy, and there are specific compulsory statements that must be included in this policy according to the Code.
Sufficient awareness training and communication to staff is another crucial step.
In order to do all of this, it is important - for both managers and employees - to fully understand what 'harassment' is for the purposes of the EEA and the Code. It is not just about specific types of conduct and considering these in isolation, but also the preconditions and the context of that conduct, which will determine if it constitutes harassment that has to be addressed.
Harassment is unwanted conduct towards an individual or group which impairs dignity / creates a hostile working environment by way of actual/threatened adverse consequences, and which is related to the listed grounds in s6(1) of the EEA.
It includes physical, psychological, emotional abuse / threats of force or power, also if done online.
It can be a single event or repeated conduct, and can be direct or indirect.
Factors to consider to determine if harassment has taken place include the context of the alleged harassment, the circumstances of the complainant, the impact of the conduct on complainant, and the respective positions of the complainant and the alleged perpetrator.
The perpetrator does not have to act with harmful intent - the test is the impact on the complainant and what a reasonable person would (objectively) interpret as harassment.
The Code emphasises certain types of harassment - i.e. sexual harassment, gender-based violence or harassment, and racial, ethnic or social origin harassment. Other examples of potential harassment include shaming, insults, hostile teasing, use of phobic language, intolerance, pressuring an employee to resign, passive-aggressive/covert harassment and so on. Remember however that such actions must also be linked to the prohibited grounds and have the effect of impairing the complainant's dignity.
As I mentioned earlier, the Code is a lengthy document, and to make it easier to understand at a glance, we have unpacked and simplified the key principles in two diagrams. These can be downloaded by clicking here or on the pictures below.
Employers are advised to study this Code carefully and to ensure that they (1) do the required risk assessment; (2) update their policies as may be necessary; and (3) do staff awareness training on a regular basis.
We are able to assist employers with these steps - feel free to contact us to find out more.
© Judith Griessel