On 18 March 2022, the Minister of Employment and Labour (“Minister”) published the Code of Good Practice on the Prevention of Elimination of Harassment in the Workplace (“the Code”).
The Harassment Code has been introduced to, ensure that South Africa complies with international obligations while also addressing the prevention, elimination and management of all forms of harassment in the workplace.
To this end, the Harassment Code provides guidelines for:
- employers and employees on the prevention and elimination of all forms of harassment as a form of unfair discrimination in the workplace; and
- the development of human resources policies, procedures and practices related to harassment and appropriate procedures to deal with harassment and prevent its recurrence.
The Harassment Code applies to all employers and employees as well as “applicants for employment”. It recognises that offenders and victims of harassment may be persons other than employers, employees and applicants for employment such as owners, clients, customers, suppliers, contractors, volunteers, persons in training including interns, apprentices and persons on learnerships.
The Harassment Code applies to any situation in which employees are working, or which is related to their work.
The Code defines harassment as unwanted conduct which: - impairs dignity;
- creates a hostile or intimating 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 Employment Equity Act 55 of 1998.
Physical, psychological and verbal harassment abuse can amount to harassment and include any form of intimidation and bullying in the workplace.
The Code states that employers are obliged to take proactive steps to prevent all forms of harassment in the workplace. Employers may now be held liable for any harassment perpetrated in the workplace.
The proposed process involves the adoption of a harassment policy, the communication of the content of the policy to the employees and implementing procedures to follow when harassment occurs in the workplace. These procedures would include how harassment is to be reported, what the employer’s obligations are on becoming aware of allegations of harassment and the advice and assistance to be provided to the victims of harassment.
An emphasis is placed on confidentiality and how and when this is to be maintained. It is recommended that the issue of harassment should be included in orientation, education and training programmes.
The introduction of the Harassment Code serves as motivation for employers to assess their current policies and procedures in place to address harassment in the
workplace and to ensure that they meet the guidelines set out in the Harassment Code. Failure to take address the requisite obligations may result in liability for employers.
Employers are best advised to consult a reputable labour law firm to ensure that their policies and procedures, including their own Harassment Policy is developed to provide for all possible scenarios.