Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

A new code has been published in South Africa which is similar to its 2005 predecessor (the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace), in an attempt to prevent and manage harassment in the workplace (Code). In addition to the existing obligations on employers, the new Code has created some additional obligations for employers and employees.

The Code also sets out certain guidelines in terms of what should be included in employers' policies, procedures and practices related to harassment and what steps employers should take to deal with harassment in the workplace.

Although the Code is a guide, our courts have in the past interpreted the Code as binding in cases of acts committed in terms of section 60 of the Employment Equity Act, 1998 (EEA) and when interpreting disputes regarding unfair dismissal claims and/or unfair discrimination claims. Our courts have also decided cases on the basis of the employer's compliance with the Code and therefore we are of the view that employers would need to provide extraordinary circumstances for deviating from the Code.

The new Code expands on its 2005 predecessor in a number of important areas, namely:

• The Code expands on the definition of harassment;
• Certain changes have been made to the definition of sexual harassment; and
• The Code refers to a new category of harassment, namely racial, social and ethnic origin harassment.

The objective of the Code remains the same, which is to eliminate all forms of harassment in the workplace and in any activity linked to or arising out of workplace activity. The broader definition of the workplace includes trips undertaken for work purposes, training programmes, virtual working and work-related social activities.

The Code's application is extremely wide in that it applies to all employees and employers. When the Code refers to 'employees' it includes job applicants (as defined in the EEA), volunteers, and persons in training. In terms of the Code a perpetrator and a victim can be an employee as well as third parties such as contractors, suppliers, customers and other persons who have dealings with the employer.

The Code places emphasis on equality, privacy and dignity and provides both employers and employees with guidelines for the prevention and elimination of harassment as a form of unfair discrimination. The definition of harassment has been broadened. In this regard, the Code defines harassment as including (but not limited to) behaviours that slander, malign and humiliate employees; behaviours including spreading rumours maliciously, withholding work-related information and/or providing incorrect information; sabotaging or impeding work performance; boycotting or excluding employees from work-related activities; passive-aggressive or covert harassment; mobbing and online harassment. Employers’ harassment policies should accordingly be updated to refer to this broader definition. The Code retains the requirement that, in order to constitute harassment, the behaviour in question must still relate to one of the listed grounds of discrimination as set out in terms of section 6 of the EEA or an arbitrary ground.

Sexual harassment

According to the Code there are four factors in establishing whether there has been sexual harassment:

1. Unwanted conduct: either the perpetrator should have been alerted to the fact that their behaviour is unwanted; or alternatively the conduct should be such that the alleged perpetrator knew or ought to have known that the behaviour was unwanted.


2. Nature and extent of the conduct: the conduct must be sexual in nature in order to qualify as sexual harassment and the behaviour could be physical, verbal or non-verbal conduct which is expressed either directly or indirectly. A single incident of unwanted sexual conduct may constitute sexual harassment for purposes of the Code.


3. Impact of the conduct: in order to be established as sexual harassment the conduct must have had the effect of impairing the employee's dignity.


4. Test for sexual harassment: the test takes account of four factors, namely:
   
   
   • Whether the harassment is on the prohibited grounds of sex, gender and/or sexual orientation;
   • Whether the conduct was unwanted or unacceptable;
   • The nature and extent of the sexual conduct; and
   • The impact of the conduct on the employee.

Racial, social or ethnic origin harassment

Racial harassment is defined as unwanted conduct that is either persistent or a single incident and that is harmful, demeaning, humiliating, or creates a hostile or intimidating environment. According to the Code, 'conduct that is calculated to induce submission by actual or threatened adverse consequences constitutes harassment although it is not an essential element of its definition.'

Racial harassment may include direct or indirect behaviour which may in turn involve verbal or non-verbal conduct including but not limited to remarks, racist name-calling and racist cartoons, memes or innuendos.

It is important to note that, in terms of this Code, it is specifically mentioned that stereotyping or racial conduct is assumed to be offensive and unwanted. Employees are therefore required to know that this conduct is assumed to be unwanted and unwelcome and that it impacts negatively on an employee's dignity. In order for employers to avoid liability for the actions of employees, it is thus important for employers to conduct comprehensive training on the Code.

Forms of racial harassment

The Code sets out a number of examples of racial harassment but this is not a closed list. The list of possible conduct amounting to racial harassment includes:

• Abusive language and racist jokes;
• Racially offensive material, be it written or visual and whether online or not;
• Racist name-calling or negative stereotyping; and
• Open hostility towards a person of a specific racial or ethnic group.

Factors to consider in terms of racial harassment

There are five factors that need to be considered in cases of potential racial harassment. These are:

• Whether the language or conduct complained of is abusive;
• Whether the language or conduct complained of impairs the complainant's dignity;
• Whether the language or conduct complained of is directed at a particular employee(s);
• The extent and degree of abuse or impairment to a person's dignity; and
• The impact of the conduct.

The test for racial harassment

The test for racial harassment is an objective one. It must be established on a balance of probabilities that the offending behaviour was related to race, ethnic or social origin or with a character associated with one of those. Where the racial harassment is in the form of explicit behaviour, an important factor to take into consideration would be how the offending employee treats other people who are not of the complainant's race, ethnic or social group.

Employers' obligations

All employers are obliged in terms of section 60 of the EEA to take remedial and proactive steps to prevent all forms of harassment in the workplace. Accordingly the following steps are recommended for employers in order to fulfil their obligations in terms of the EEA and the Code:

• Employers must have a zero-tolerance policy towards harassment;
• Employers must create and maintain a working environment in which the dignity of all employees is protected and respected;
• Employers must refrain from committing acts of harassment;
• Employers must ensure that all parties that have dealings with the business are protected from harassment by the employer's employees and/ or anyone representing the employer;
• Employers should attempt to ensure that employees are not subjected to harassment by people they come into contact with in the course of their employment (for example clients, customers, suppliers);
• Employers must adopt policies and procedures which make their position in respect of the elimination, prevention and management of harassment clear;
• Employers must implement training and awareness programmes on an ongoing basis for employees at all levels within the company; and
• Employers must take appropriate measures that comply with the Code where instances of harassment do occur in their workplaces.

What should employers do?

All employer should relook at their harassment policies as the definition of sexual harassment may now be too narrow and the definition of racial, ethnic and social origin harassment needs to be included in the policy in alignment with the new Code.

The existence and contents of the employer's harassment policy must be communicated to all employees, as this will be taken into account by courts when deciding whether an employer has discharged its duty in terms of section 60(2) of the EEA.

The code explicitly states that all employers' harassment policies must substantially comply with the Code and must contain the following six statements, at a minimum:

• Harassment, including acts of violence, will not be tolerated in the workplace;
• Harassment on a prohibited ground is a form of unfair discrimination which infringes the rights of the complainant and constitutes a barrier to equality in the workplace;
• Harassment related to any prohibited ground in the workplace will not be permitted, tolerated or condoned;
• Grievances about harassment will be investigated and handled in a confidential manner;
• Complainants in harassment matters have the right to follow the procedures in the policy and appropriate action must be taken by the employer (these procedures should be laid out clearly in the policy); and
• It will be a disciplinary offence to victimise or retaliate against an employee who, in good faith, lodges a grievance about harassment, whether in respect of themselves or another employee.

The employer is under an obligation, once an incident of harassment has been reported, to investigate and consult all the relevant parties, take the necessary steps to address the complaint in accordance with the Code and the employer's policy; and take the necessary steps to eliminate the harassment. Importantly, a failure by an employer to take the necessary steps within a reasonable time may render the employer vicariously liable for the employee's conduct.

The employer must also inform the complainant of the informal and the formal procedures available to them to deal with their complaint; offer the complainant advice, assistance and counselling to the extent reasonably practicable; and follow the procedures in the Code in a substantively and procedurally fair manner. An addition to the Code that was not in the previous code is that an employer should designate someone outside of the employee's direct management line as the person to whom complainants can reach out if in need of confidential advice and/or counselling. This person could be an employee, a trade union representative or a professional such as a psychologist or a psychiatrist. The employer's harassment policy must specify the sanctions that may be imposed on a perpetrator of workplace harassment.

Additional sick leave

Another notable departure from the previous code is that, in terms of the previous code, it was open to the employer to provide extra sick leave to the complainant if the employer deemed it necessary. Now the new Code specifies that if the harassment results in the employee having to take sick for longer than two weeks, the employee can claim illness benefits in terms of the Unemployment Insurance Act, 2001.

Please feel free to reach out to us should you have any queries in relation to the above.