Harassment in the Workplace
The concept of harassment in the workplace has been extended in the new Code of Good Practice (“the Code”) published under the Employment Equity Act (“the EEA”) in March 2022.
The scope of the Code is much wider than previously set out, in that it now covers all forms of harassment against women, men, LGBTQIA+ and vulnerable persons in the workplace, inclusive of a prohibition of career sabotage, cyberbullying, ostracizing, bullying, passive aggressive behaviour and sexist or LGBTQIA+ phobic language.
What is harassment?
Whilst ‘harassment’ is not defined in the EEA, the Code provides that the term is generally understood to mean:
- unwanted conduct, which impairs one’s dignity; and / or
- which creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of creating a hostile work environment, including that created 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, such as race, religion or culture.
The test for whether conduct amounts to harassment revolves around whether the conduct in question was ‘unwanted’, the nature thereof and the impact on the victim. To simply claim “I did not mean it” is no longer a plausible defense.
The previous Code made no direct mention to the concept of bullying in the workplace, whereas the amended code provides that all forms of harassment (such as bullying) must be investigated accordingly with either a formal or informal disciplinary process.
Accordingly, employers are now under an obligation to take proactive steps to prevent and investigate all forms of harassment in the workplace, which includes, conducting a risk assessment of harassment to employees, implementing an appropriate policy addressing harassment, conducting training and implementing ongoing awareness programmes.
The Code extends the scope of harassment beyond employers and employees and applies to owners; managers; supervisors; job seekers and job applicants; persons in training including interns, apprentices and persons in learnership; volunteers; clients and customers; suppliers; contractors; and others having dealings with a business.
The amended Code further applies to all employers and employees irrespective of whether they operate in the formal or informal sector placing a heavier burden on employers to eliminate harassment in the workplace.
In terms of section 60 of the EEA, employers who fail to take the necessary steps within a reasonable time may render themselves vicariously liable for any harassment perpetrated, even if the harassment consists of a single incident.
For more information on harassment in the workplace or labour law, kindly email us on info@hjw.co.za.
Written by Alexi Rosenzweig
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW ATTORNEYS at info@hjw.co.za directly for advice applicable to your specific matter.