Sexual harassment in the workplace

What is the Code and what does it mean for employers and employees?

Have you or has someone you know been sexually harassed at work? The likelihood is significant: approximately 30% of women had experienced sexual harassment in the workplace, according to a 2019 survey by the South African Human Rights Commission (SAHRC). The Labour Research Service estimates – conservatively – that one in four women will experience sexual harassment at work at some time during their career. Harassment not only takes a huge psychological toll on victims, there are also serious financial consequences for women. Many women have been pushed out of well-paid, male-dominated industries and forced to take up employment in lower-paid fields or accept jobs with less certainty, or experienced some level of loss of work or involuntary job change.

Defining sexual harassment

Although sexual harassment is not defined as abuse of women – men can also be sexually harassed – it is behaviour predominantly perpetrated against women by men. What exactly is sexual harassment? It is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equality in the workplace. Associate Professor of Law at Wits University School of Law, Marthinus van Staden, says it “…impairs human dignity and creates a hostile working environment. It is an abuse of power, and it includes physical, verbal or psychological conduct and it particularly affects employees in vulnerable employment.”

The conduct must be unwelcome for it to amount to sexual harassment. This can be indicated verbally or non-verbally. Even if the conduct was previously welcomed or participatory (i.e., the two were in a relationship), if the conduct has become unwelcome, a complaint of sexual harassment is valid.

What recourse is available to an employee who is being sexually harassed? What do employers need to know and what action should you take if you run a business?

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

The Employment Equity Act, 1998 (EEA) prohibits unfair discrimination against an employee on multiple grounds, including race, gender, sex, marital status, and more. All forms of harassment are considered a form of unfair discrimination and therefore constitute a barrier to equity and equality in the workplace. Harassment includes sexual harassment and also bullying and racial, ethnic or social origin harassment. Harassment may be physical, psychological, emotional or sexual.

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) is not legislation but is a code pf practice that applies to all employers and employees as provided for in the EEA. The Code aims to eliminate all forms of harassment in the workplace by providing guidance on the policies and procedures to be implemented when harassment occurs. The Code came into effect in March 2022 and replaces the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. The new Code goes beyond the recognition of sexual harassment, although this article focuses on sexual harassment.

Employer obligations – information and prevention

Employers need to make sure their policy environment takes heed of the Code. Company policies and procedures should be updated in line with the code, in consultation with all stakeholders. In other words, all employees should have input, not only the C-suite or senior managers. It’s a good idea to conduct a risk assessment for harassment in the workplace and set out clear guidelines as to how the risk will be addressed. Employees should then be educated about their rights and about the company’s policies. Reporting mechanisms should be clearly communicated and easy to use. A committee should be established and given sufficient training to investigate claims of harassment.

Employers have a duty to prevent unfair discrimination and harassment and not simply ensure reporting procedures are in place. To mitigate harassment in the workplace, an employer may introduce signage and posters regarding the nature and reporting of harassment. They should also make it clear to all contractors, suppliers or any external personnel that harassment will not be tolerated.

Employer obligations – when harassment occurs

The EEA and Code require harassment to be reported “as soon as reasonably possible in the circumstances and without undue delay, taking into account the nature of the harassment, including that it is a sensitive issue, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace”. 

If the harassment is perpetrated by a non-employee, the employer has an obligation to investigate the complaint and take steps to protect its employees. Harassment can be reported by a third party who is not the victim. In fact, other employees have a duty to do so. As soon as the complaint of harassment is brought to the employer’s attention they should: 

• Investigate the complaint 
• Consult all relevant parties 
• Inform the complainant of the procedures available to them
• Explain what the procedures entail and that they may choose which procedure to follow
• Assure the complainant they will not face adverse consequences
• Offer advice, assistance and counselling to the complainant
• Inform the complainant their complaint will be dealt with confidentially
• Take the necessary steps to deal with the complaint 
• Take steps to eliminate the harassment 

The Code also encourages employers to consider, in cases of serious harassment, providing employees with additional paid sick leave where they have exhausted their sick leave provisions and referring them for trauma counselling. 

Non-compliance with the Code

An employer is deemed to have contravened the EEA if they faileto take the necessary steps to eliminate the harassment following an act perpetrated in their workplace. The employer may be liable to pay damages or compensation to the victim. An employer will not be liable if they took all reasonably practical steps to eliminate harassment in the workplace. 

If an employee is not satisfied with the steps taken by the employer, they may refer a harassment dispute to conciliation or arbitration by the CCMA or Labour Court.

Disciplinary action against a perpetrator 

The Code requires employers and employees to ensure grievances about harassment are investigated and handled in a manner that protects the identities of the people involved. This also applies to disciplinary proceedings. It is a disciplinary offence to bring false complaints of harassment against any person and this misconduct may warrant dismissal. An apology for the harassment does not preclude the employer taking disciplinary action. The employer is obliged to eliminate harassment in the workplace and, where it does occur, to prevent its recurrence. There are various appropriate sanctions proportionate to the seriousness of the harassment that an employer may use. Warnings may be issued for minor instances of harassment. Dismissal may also be warranted.

The employer’s liability for sexual harassment

Employers need to understand the nature and application of the Code in the workplace to mitigate the risk of being vicariously liable in terms of the EEA. The Code is an extension of an employer’s obligation to ensure a safe working environment, which includes one free from violence and harassment.

SD Law can help

If you have been the victim of sexual harassment at work and your employer has not discharged their obligations under the Code, you do not have to accept this. There are legal options available to protect you against harassment at work or any type of victimisation or other unreasonable treatment. SD Law can help. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential, personal discussion.

Further reading:

• Unfairly dismissed?
• Sexual harassment is a growing workplace scourge and laws dealing with it are fragmented
• Sexual harassment – Misconduct that plagues a workplace

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