Introduction

A new Code of Good Practice on the Prevention and Elimination of Harassment, came into effect on 18 March 2022. The Code, issued in terms of the Employment Equity Act (EEA), replaces the previous Code of Good Practice on Handling Sexual Harassment cases in the Workplace and gives a more detailed meaning to the prohibition in section 6(2) of the Act which simply states that harassment is a form of unfair discrimination if it is linked to any of the prohibited grounds for discrimination mentioned in section 6(1).

The Code applies to actions by employers, employees, clients, customers and other third parties with whom an employer does business that fall within the ambit of ‘harassment’ as defined in the Code (see below) and places additional obligations on employers (and trade unions) to prevent harassment, take disciplinary and other action when it occurs; and provide various forms of assistance to victims of harassment.

Forms of harassment

The Code essentially teases out the grounds on which discrimination is prohibited in section 6 of the EEA in greater detail. It is extremely broad and includes just about every form of harassment imaginable, including: sexual harassment; bullying including cyber-bullying; gender-based violence; the use of power resulting in adverse consequences, particularly for vulnerable groups; harassment, teasing and insults based on someone’s race, sex or sexual orientation; shaming; threats of physical force and all other actions that can create a barrier to equity and equality in the workplace. Jokes with sexual or racial undertones, poking fun at someone’s sexual orientation, spreading unfounded rumours and stalking someone online all fall within its ambit.

Also included are certain situations where an employer might find it difficult to establish the validity of a complaint and to take appropriate action. These situations include the use of pressure to effect an employee’s resignation; demotion without justification; and the use of disciplinary sanctions without ‘objective cause or efforts to problem solve’. Exactly what is meant by the latter (efforts to problem solve) is not clear, yet one can imagine situations where employees facing legitimate disciplinary action or propose demotion as an alternative to dismissal might now also be faced with a complaint in terms of the EEA in addition to complaints of procedural or substantive unfairness in terms of the Labour Relations Act. One way of trying to prevent this is not only to make sure that sufficient grounds exist for such actions but that in case of a demotion (which the employee has to agree to for it to be valid) includes a clause in which the employee acknowledges the absence from any form of pressure.

To whom and when does the Code apply?

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, e.g. customers, clients, suppliers and others and includes volunteers, job seekers, job applicants and trainees within its protective ambit.
All employees as normally understood are covered as well as unpaid volunteers, job seekers, job applicants and trainees. It furthermore 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 and otherwise to any situation in which an employee is working or engaged in activities related to work (e.g. while in training or traveling for business)

What constitutes harassment?

What is included?
In broad terms, harassment exists when conduct (of an employer, fellow employees, customers, etc) is unwanted; creates a hostile working environment (i.e. that is physically, emotionally or psychologically unsafe and affects employee well-being or mental health); and is related to one of the prohibited grounds mentioned in section 6 of the EEA. The test for whether harassment has occurred is an objective one: if these factors are all present, harassment is established and will be up to the harasser (the employer, fellow employee, customer, etc.) to advance one of the defences provided for in the EEA to escape liability (in the form of compensation, fines or even imprisonment) under the Act. These include that the incident complained of does not constitute discrimination, or that it was justified in the circumstances.

Vicarious liability
Employers are, in terms of the EEA, 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, if an employee experiences harassment as defined by another (whether of the same rank, lower or higher) while on a team building session at some remote location, for example, the employer could in principle be jointly liable for that.

Awareness and intention
The incident is looked at from the vantage point of the complainant. This means, amongst others, that harassment can still be unwanted even without the harasser being or having been made aware of it. The test is whether a reasonable person would have known that the conduct amounted to harassment. It also does not have to consist of repeated conduct – one incident could suffice. Intention to harass is also not required but could be an aggravating factor against the harasser.

Unreasonable complaints
What if the complainant’s perception of the situation is unreasonable? The Code allows for an employer to show that the complainants perception is ‘not consistent with societal values reflected in the Constitution’. What exactly this means isn’t clear and will need to be given substance in arbitration awards and the judgments of the Labour Courts.

What is required of employers?

Employers are required in terms of the Code to adopt a zero-tolerance stance with regards to harassment. In this regard it needs to develop an harassment policy in consultation with employees and their representatives that includes steps to be taken to prevent harassment and indicate what actions may follow if it occurs, including following the grievance procedure (formal or informal); disciplinary action; indicate what advice, assistance and counseling will be provided to victims of harassment (including additional sick leave in some cases); provide training; guarantee confidentiality of both victim and alleged harasser during investigations; and its policy should be made known to employees and those external parties with whom the employer deals with.

Conclusion

While the EEA has always required employers to prevent and take action in case of discrimination in the workplace (including harassment), this Code spells out in far more detail what harassment means and what responsibilities they carry with regard to that. It will require a heightened sense of awareness among leaders, managers, supervisors and employees in general about what is permitted and what not; a zero-tolerance attitude supported by clear rules in this regard; pro-activity to prevent harassment and a willingness to offer various forms of assistance to those who are the victims of harassment.

While this might seem like just one more legislative burden on already heavily burdened employers, research consistently shows that employees who experience a safe work environment are more trusting of their employers, more productive and also more loyal.

For the full text of the Code click here

Barney Jordaan for www.labourwise.co.za