HARRASSMENT IN THE WORKPLACE

A period of six months has passed since the Amended Code of Good Practice on the Handling of Sexual Harassment in the Workplace, 2005 was replaced by the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“the Code”).

Whilst many employers may have existing policies that sufficiently deal with sexual harassment in the workplace, it is important that those policies are updated to incorporate and provide sufficient mechanisms to deal with all forms of harassment arising out of the new Code.

Harassment of an employee constitutes unfair discrimination in terms of the Employment Equity Act 55 of 1998 (“the EEA”) and section 60 of the EEA places an obligation on employers to investigate and take necessary steps to deal with allegations of harassment. A failure to discharge its obligations in terms of this section, renders an employer vicariously liable for the acts of discrimination.

So, what constitutes harassment in terms of the Code and how should employers respond to the guidelines as set out in the Code?

In terms of the Code, harassment is generally understood to be unwanted conduct which impairs dignity, creates a hostile or intimidating working environment, 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 extends this concept beyond sexual abuse to include violence, physical abuse, psychological abuse, emotional abuse, gender-based abuse and racial abuse.

Workplace conduct which may constitute harassment includes, slandering, hurling insults, spreading malicious rumours, ostracising, sabotage, surveillance of an employee without the employee’s knowledge and intolerance of psychological, medical, disability or personal circumstances.

Sexual harassment may include touching, kissing, sexual assault, rape, sexual advances, innuendos or sending sexually explicit material electronically. Racial, ethnic, or social origin harassment includes racist remarks, cartoons and innuendoes, stereotyping, offensive name calling and subtle or blatant exclusion from workplace interaction and activities.

It is important to note that perpetrators and victims of harassment are not limited to employers and employees but also include owners, clients, customers, job applicants, suppliers, contractors, and others having dealings with the business of the employer. In addition, instances of harassment are not limited to the workplace but include work related activities such as travel, social activities, transport provided by employers, training, employer-provided accommodation, communication technology and internet platforms.

Apart from the implications arising out of the EEA, harassment claims may give rise to a host of other remedies arising out of other forms of legislation.

It is accordingly imperative that employers adopt a zero-tolerance approach to harassment in the workplace. Clear policies setting out guidelines on what may constitute harassment as well as clear procedures for complainants to lodge complaints against the perpetrator ought to be adopted by employers. Sufficient mechanisms must also be put in place to deal with instances of harassment including both informal and formal processes.

Employers should also create awareness around issues pertaining to harassment by educating all employees through training and induction, creating additional mechanisms such as the granting of additional sick leave in instances of serious harassment and ensuring confidentiality and the protection of identities when dealing with cases of harassment