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On 18 March 2022 the Minister of Employment and Labour replaced the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace issued in terms of the Employment Equity Act, 1998 with the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace with a new Code (“the Code”). 

The Code is intended to address the prevention, elimination and management of all forms of harassment, which is regarded as unfair discrimination and a barrier to equality, in the workplace.

The Code applies to all employers and employees (including applicants for employment) and places a positive obligation on employers to develop and implement policies which eradicate any forms of harassment. Employers are expected to have a zero-tolerance approach towards harassment.  

The protection of employees against harassment applies not only to the workplace but includes work-related trips, accommodation, transport provided or controlled by the employer and the location where remote employees work.

Harassment” is unwanted conduct which impairs one’s dignity, creates a hostile or intimidating work environment and is related to one or more of the prohibited grounds of discrimination. Whether or not conduct constitutes harassment is assessed from the perspective of the victim, although this is judged objectively whether the victim’s perspective is consistent with the views of the “reasonable person”. The perpetrator’s intention or statement of mind need not be established in order to prove harassment, but intentional conduct is an aggravating factor.

Harassment may be the result of physical, verbal or psychological conduct and includes “vertical” and “horizontal” forms. Vertical harassment refers to harassment between the employer/manager and employee. Horizontal harassment refers to harassment between employees in the same position or on the same level.

The Code unpacks procedural guidelines which employers should establish and implement, which include:

  • Adopt a harassment policy which is aligned to the Code;
  • Implement informal and formal procedures to address allegations of harassment;
  • Investigate all allegations of harassment which are brought to the fore;
  • Offer advice, assistance and counselling to the victim with additional paid sick leave where necessary;
  • Implement awareness training to educate employees at all levels about harassment; and
  • Develop clear procedures to address and eliminate harassment.

An employer who fails to take adequate steps to eliminate harassment will be rendered vicariously liable for the conduct of the perpetrator.

Should you require any more information, please contact Melanie Hart at melanie@bv-inc.co.za