25 March 2022
Acknowledgements to Bowmans
The Minister of Employment and Labour has published the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) in terms of the Employment Equity Act (EEA). The Code became effective on 18 March 2022 and repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.
The publication of the Code follows the ratification by South Africa of the International Labour Organisation’s Convention on the Elimination of Violence and Harassment in the World of Work in November 2021. The Convention obliges ratifying states to adopt an inclusive, integrated and gender-responsive approach to violence and harassment in the workplace. The Code accordingly seeks to address the elimination and prevention of all forms of harassment (and not just sexual harassment) that pervade the workplace and is guided by the Convention.
Key take-aways for employers
The Code provides guidance to employers and employees on the elimination and prevention of harassment as a form of unfair discrimination in the workplace. In this regard, the eight key take-aways from the Code are as follows:
The Code applies to all employers and employees irrespective of whether they operate in the formal or informal sector. In determining whether a person is an employee for purposes of the Code, the presumption in section 200A of the Labour Relations Act is applicable. Volunteers and applicants for employment also fall within the definition of an employee.
Perpetrators and victims of harassment extend beyond just employees and employers and may include owners, managers, job applicants, interns, apprentices, volunteers, clients, customers, suppliers, contractors and any other persons having dealings with a business.
The Code makes it clear that the protection of employees against harassment applies in any situation in which the employee is working, or which is related to their work. In other words, harassment does not only occur when employees are on-duty at the physical workplace but extends to work-related trips, training or social activities, work-related communications, employer-provided accommodation, when commuting to and from work in transport provided by the employer or the location of employees who are required to work virtually, amongst others.
The Code deals with the concept of harassment broadly and highlights sexual harassment and racial, ethnic or social origin harassment as specific forms of harassment.
Whilst the term ‘harassment’ is not defined in the EEA, the Code provides that the term is generally understood to be unwanted (or unwelcome) conduct which:
creates a hostile or intimidating work environment for one or more employees, or is calculated to, or has the effect of inducing submission by actual or threatened adverse consequences; and is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA.
The Code recognises that harassment includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse and racial abuse. It includes the use of physical force or power, whether threatened or actual, against another person or against a group or community. Further, the intersection of factors such as race, religion, gender or disability increases the risk of harassment in the workplace.
The Code makes reference to other statutes that are relevant and which employers are required to comply with in order to prevent violence and harassment in the workplace, including the Promotion of Equality and Prevention of Unfair Discrimination Act, the Labour Relations Act, the Occupational Health and Safety Act, and the Protected Disclosures Act.
Employers are under an obligation to take proactive and remedial steps to prevent all forms of harassment in the workplace. In terms of the Code, this includes conducting an assessment of the risk of harassment to employees, implementing an appropriate policy addressing harassment, conducting training to educate employees about the various forms of harassment and implementing ongoing awareness programmes.
The Code introduces new requirements which employers will be required to adhere to, failing which they may be found liable in terms of section 60 of the EEA.