Code of Good Practice: Prevention and Elimination of Harassment in the Workplace
6 April 2022

  1. The Minister of Employment and Labour (“Minister”) published the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“Code”), effective from 18 March 2022, and concertedly repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.
  2. The Code has been established to negate and address the prevention and elimination of all forms of harassment as a form of unfair discrimination in the workplace and provides guidelines on the procedures to deal with harassment and prevent its recurrence. The Employment Equity Act, 1998 (“EEA”) implores employers to eliminate unfair discrimination. Harassment in the workplace constitutes unfair discrimination which necessitates the employer’s involvement to eliminate same and restore impartiality.
  3. It applies to all employers and employees, as provided for in the EEA, irrespective of whether they are in the formal or informal sector or whether they are a commercial undertaking or not. Both volunteers and applicants for employment fall within the definition of employee.
  4. Its application is not restricted, nor does it apply exclusively to employers and employees. Perpetrators and/or victims of harassment may comprise of, but are not limited to, owners, managers, supervisors, job seekers and job applicants, volunteers, clients and customers, suppliers, contractors, persons in training such as interns, apprentices and persons on learnerships and any other persons having dealings with a business. The list is not exhaustive
  5. The term “harassment” is not defined in the EEA, however the Code provides that the term is generally understood to be “unwanted or unwelcome conduct, which impairs dignity; creates a hostile or intimidating work environment for one or more employees, or is calculated to, or has the effect of, inducing submission of actual or threatened 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.
  6. Protection applies in any situation in which the employee is working, or which is related to their work. This includes, but is not limited to, work-related trips, travel, training, events or social activities, when commuting to and from work in transport provided for by the employer, work-related communications, including those enabled by information and communication technologies and internet based platforms, even in the case of employees who work virtually from their homes, or any other place other than the employer’s premises, the location where they are working constitutes the workplace.
  7. Sexual harassment is generally known to be the conventional form of harassment. The Code, however, specifically considers sexual harassment and racial, ethnic, or social origin harassment as specific forms of harassment and has extended the ambit of harassment to include 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. Very importantly, it includes verbal harassment such as intimidation and bullying.
  8. This Code empowers victims to act against all forms of workplace abuse, which elucidates what was previously a grey area as it details explicitly various forms of harassment to ensure that employees are protected against both their employers and their colleagues.
  9. It is progressive in that it advances and advocates for the need to dispel discriminatory practices in the workplace by detailing concepts that had not found expression in the past. For example, it prohibits threats, shaming, constant negative judgement and criticism, hostile teasing, insults, or racist, sexist, or LGBTQIA+ phobic language, and bullying, all of which may result in psychologically related ailments and the inability to function to their full capacity.
  10. Employers are under an obligation to assess the risk of harassment that employees are exposed to while executing their duties and should take reasonable steps to remedy any inconsistencies that may exist in order to prevent all forms of harassment.
  11. In pursuit of this, the Code makes reference to other relevant statutes 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 LRA, the Occupational Health and Safety Act, the Protected Disclosures Act and the Protection from Harassment Act.
  12. Employers are required to assess their current policies to ensure that they conform to the guidelines set out in the Code and implement an appropriate policy dealing with harassment. It is also imperative to educate employees on the updated policies so that they are aware of conduct that constitutes harassment as envisaged by this Code.
  13. Furthermore, employers should develop methods with which to deal with harassment in order to resolve matters in an efficient, confidential and gender- sensitive manner.
  14. The duty to report harassment falls squarely on the employee, and it is crucial that they report matters to their employers immediately to allow the employer to investigate the matter and implement steps to prevent its recurrence.
  15. Employers do not only have a duty to investigate the matter, but they also have a concurrent duty to advise complainants of the informal and formal procedures that are available to them to deal with harassment.
  16. Following an allegation of harassment, the employer should consult the relevant parties, and takes steps to address and eliminate harassment in alignment with this Code. Failure to do so will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EEA.
  17. Therefore, the employer should engage the employee, advise them on the available procedures and designate a competent person, sourced externally, to provide assistance and/or counselling.
  18. The employer should also ensure that conduct that amounts to harassment is not absolved and should specify a range of disciplinary sanctions that may be imposed on the perpetrator and are proportionate to the seriousness of the conduct. This could include either a warning, dismissal, transfer to another department, the institution of civil proceedings or a criminal charge.

Please note that the Code is extensive and specific in relation to specific types of harassment. Should you have any questions, please feel free to contact our offices.

By Karabo Tsopo, Candidate Legal Practitioner, Pretoria
Checked by Manisha Maganbhai-Mooloo, Head of Litigation, Pretoria