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May 9, 2022

Workplace harassment: The new code in a nutshell

“The criterion that harassment involves unwanted conduct distinguishes acts of harassment from acceptable conduct in the workplace” (extract from the Code, emphasis added)

With effect from 18 March 2022, a new “Code of Good Practice on the Prevention and Elimination of Violence and Harassment in the Workplace” came into effect. Every employer and employee should know about it.

The new Code has replaced the old “Code of Good Practice for the Handling of Sexual Harassment Cases in the Workplace”. It is much wider in every way possible because it “… is intended to address the prevention, elimination, and management of all forms of harassment that pervade the workplace” (extract from the Code, emphasis added).

Of necessity, what is laid out below is no more than an overview of an extremely complex topic so in any doubt seek professional advice specific to your circumstances!

In a nutshell…

There’s a lot more detail below, but in essence –

  • The Code applies to all employers, employees, and workplaces (office-based or remote)
  • Its reach is extremely wide in prohibiting any and all forms of workplace harassment
  • Employers have a raft of duties to comply with in relation to assessing workplace risks of harassment, and in formulating and applying procedures to prevent and deal with it
  • Failure to comply risks substantial liability.

Who does the Code apply to?

In a nutshell, it applies to pretty much everyone involved in any business with one or more employees, the Code making it clear to start with that all employers and employees, in both the formal and informal sectors, are included.

Specifically mentioned as possible perpetrators and victims of harassment, in addition to employers and employees, are owners, managers, supervisors, job seekers and job applicants, persons in training including interns, apprentices and persons on learnerships, volunteers, clients and customers, suppliers, contractors, and (the very wide catch-all at the end) “others having dealings with a business”.

When and where does it apply?

It applies virtually everywhere, including remote and out-of-office situations – “in any situation in which the employee is working, or which is related to their work”, including the workplace itself (widely defined), “work-related trips, travel, training, events, or social activities”, “work-related communications, including those enabled by information and communication technologies and internet based platforms”, employer provided accommodation and transport, and “in the case of employees who work virtually from their homes, or any place other than the employer’s premises, the location where they are working constitutes the workplace.”

What must you as an employer do about it?

In broad terms you must –

  • Take proactive and remedial steps to prevent all forms of harassment in the workplace
  • Conduct an assessment of the risk of harassment that employees are exposed to while performing their duties (emphasized as this is probably the best place to start!)
  • Apply an attitude of zero tolerance towards harassment
  • Create and maintain a working environment in which the dignity of employees is respected
  • Create and maintain a climate in the workplace in which employees who raise complaints about harassment will not feel that their grievances are ignored or trivialized, or fear reprisals
  • Adopt a harassment policy, which should take cognisance of and be guided by the provisions of the Code
  • Develop clear procedures to deal with harassment, which should enable the resolution of problems in a gender sensitive, confidential, efficient, and effective manner.

If you don’t tick all of those boxes, you risk substantial liability not only under our employment laws but also under the general principles of “vicarious liability” in the form of liability for any employee misconduct causing harm to others.

What is “harassment”?

The following extract from the Code gives an idea of just how broad the general definitions of harassment are –

Types of harassment

4.7.1 Harassment may be the result of physical, verbal, or psychological conduct.

4.7.2 Physical harassment includes physical attacks, simulated or threatened violence, or gestures (such as raising a fist as if to strike a person or throwing objects near a person).

4.7.3 Verbal bullying may include threats, shaming, hostile teasing, insults, constant negative judgment, and criticism, or racist, sexist, or LGBTQIA+ phobic language.

4.7.4 Psychological harassment in the workplace may be associated with emotional abuse and involves behaviour that has serious negative psychological consequences for the complainant(s) such as is often the case with verbal abuse, bullying and mobbing.

4.7.5 A wide range of conduct in the workplace may constitute harassment. Examples of harassment include, but are not limited to:

4.7.5.1 slandering or maligning an employee or spreading rumours maliciously;

4.7.5.2 conduct which humiliates, insults or demeans an employee;

4.7.5.3 withholding work-related information or supplying incorrect information;

4.7.5.4 sabotaging or impeding the performance of work;

4.7.5.5 ostracising, boycotting, or excluding the employee from work or work-related activities;

4.7.5.6 persecution such as threats, and the inspiration of fear and degradation;

4.7.5.7 intolerance of psychological, medical, disability or personal circumstances;

4.7.5.8 surveillance of an employee without their knowledge and with harmful intent;

4.7.5.9 use of disciplinary or administrative sanctions without objective cause, explanation, or efforts to problem solving;

4.7.5.10 demotion without justification;

4.7.5.11 abuse, or selective use of, disciplinary proceedings;

4.7.5.12 pressuring an employee to engage in illegal activities or not to exercise legal rights; or

4.7.5.13 pressuring an employee to resign.”

What is “sexual harassment”?

Again, the definitions here are extremely wide and include any form of unwanted conduct of a sexual nature including physical, verbal, or nonverbal conduct, whether expressed directly or indirectly.

Specific examples that seem to have attracted the most media attention include sexual innuendos, comments with sexual overtones, sex related jokes, whistling of a sexual nature, sexually explicit texts, and “unwelcome gestures”, but there are many more.

What about “racial, ethnic or social origin harassment”?

Again, the definitions are wide here, including the concept that “Racial harassment is unwanted conduct which can be persistent or a single incident that is harmful, demeaning, humiliating or creates a hostile or intimidating environment” and illustrated by this extract from the Code –

The forms of racial harassment may include:

6.6.1 Abusive language and racist jokes, cartoons, or memes, including communications that amount to hate speech;

6.6.2 Racially offensive written or visual material, including online harassment;

6.6.3 Racist name calling or negative stereotyping impacting on a person’s dignity;

6.6.4 Offensive behaviour in the form of open hostility to persons of a specific racial or ethnic group;

6.6.5 Subtle or blatant exclusion from workplace interaction and activities and other forms of marginalisation; and

6.6.6 Threatening behaviour, which intimidates a person or creates a hostile work environment.”

Bottom line: If you think something could possibly be classified as “workplace harassment”, it almost certainly will be!

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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