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 provides guidance to employers and employees on the elimination and prevention of harassment as a form of unfair discrimination in the workplace. It applies to all employers and employees in both the informal and formal sectors and includes persons having dealings with employers. This broad application means that perpetrators or victims of harassment may include owners, managers, job applicants, interns, apprentices, customers or contractors.

The codes specifically protect employees in any “work-related” situation, which could include business travel, social events or training activities.

Defining harassment:

The Employment Equity Act does not define the term “harassment”, however, the code provides that the term is understood to include “unwanted” or unwelcome conduct which impairs dignity, creates a hostile or intimidating work environment for one or more employees, or is calculated to have the effect of inducing submission by actual or threatened adverse consequences. The new code provides that unwanted conduct must also be related to one or more grounds in respect of which discrimination is prohibited in terms of S6(1) of the Employment Equity Act. A broad range of possible harassment (physical, mental and emotional) is covered, 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, making fun of someone’s sexual orientation (including LGBTQIA phobic language), spreading unfounded rumours and stalking someone online all fall within its ambit.

As mentioned, it is noteworthy that the new code recognises online harassment and cyberbullying, which realigns the concept of harassment with more modern ways of working, such as remote working.

The changes brought in by the new code:

The effect of the new code is that the concept of harassment is defined in more detail than before. It places an obligation on employers to adopt a zero-tolerance approach to harassment in the workplace. It is foreseeable that many employers may have to embark on further training for management and employees to ensure everyone is aware of the relevant issues. Both employers and employees should be made aware of procedures to follow when harassment is reported. Changes may need to be made to grievance and disciplinary procedures, and all should be made aware of how to advise, aid and counsel victims of harassment.

The new code refers to other statutes which also require employers to provide a safe working environment for their employees. These include the Labour Relations Act, the Occupational Health and Safety Act, and the Protected Disclosures Act. A pro-active approach is encouraged to prevent all forms of harassment in the workplace. This may include assessing the risk of harassment to employees, implementing the appropriate policies to address harassment, conduct training and educate employees as well as conducting awareness programmes.

Article by: Gordon Flanagan
Dispute Resolution Official – Cape Town