The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“the Code”), came in effect on 18 March 2022 and replaces the Amended Code of Good Practice on the Handling of Sexual Harassment cases in the Workplace. The purpose of the Code is to address not only the prevention, elimination and management of all forms of harassment, including sexual harassment, in the workplace. Harassment is defined in the Code to include physical, psychological and verbal harassment or abuse.
The Code draws from the Employment Equity Act, 1998 (“EEA”) which prohibits unfair discrimination. The Code to a large extent codifies the already existing law on harassment that has developed over the years.
Of particular importance to employers is section 60 of the EEA which makes it possible to hold employers who fail to take reasonable steps to protect their employees against harassment, liable for the acts of the perpetrator. Although the Code applies to the workplace, perpetrators and victims are not limited to employees and management only, but may also include people from outside the workplace such as clients, customers, contractors, volunteers etc. Employers’ obligation to protect its employees extends beyond the confines of the workplace and includes, as examples, protecting employees who travel for work, travel in transport provided by the Employer, attend work-related social events, and, strangely, even includes employees that work from home.
The Code, in conjunction with the EEA, sets out the steps which employers must take in order to prevent and eliminate harassment. These steps include, inter alia, developing clear policies and procedures to deal with harassment, creating awareness within the workplace and responding appropriately to allegations of harassment.
Although non-compliance with the Code may find an employer being held liable for harassment, section 60(4) of the EEA provides that where an employer may have contravened the provision of the EEA, the employer will not be held liable for the conduct of the perpetrator, if the employer is able to prove that it did all that was reasonably practicable to ensure that the perpetrator would not act in contravention of the EEA. It is therefore also important that employers take all necessary steps to create awareness that it has a zero-tolerance approach to harassment.
It is therefore important for all employers to develop or amend existing harassment policies; provide training on how to effectively deal with harassment in the workplace so as to ensure compliance with the Code and to develop appropriate tools and measures to create awareness among employees of their rights in terms of the Code.