With the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“the Code”) of 2022, the Minister of Employment and Labour attempts to provide guidelines to everyone involved in a workplace on how to eliminate all forms of harassment in the workplace, specifically harassment for reasons specified in the Employment Equity Act, 5 of 1998 (“the Act”). The Act spells out that no one may unfairly discriminate against someone else because of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, or birth.
It is important to take note that Code applies to the broad working environment and not only to employers and employees, but also owners, volunteers, suppliers, and contractors to name a few. It identifies the steps that employers have to take – including the development and implementation of policies, procedures and practices - that will lead to workplaces where integrity, dignity, privacy and the right to equality in the workplace, is protected.
Specifically, the Code sets out the test of Sexual Harassment. We believe that it is necessary for all employers and employees to understand what sexual harassment is in order to prevent and address this. For this reason we have taken the “legalese” out of it. Sexual harassment is when someone does something of a sexual nature to someone else in the workplace, that they know or should know is not wanted by the other person. Sexual harassment can upset, make someone uneasy, or even make them fear harm. It might disrupt their work, even if it doesn't always. It's against an employee's rights and blocks fairness at work. That is why sexual harassment is automatically considered to be a form of discrimination.
While the application of the test in the Code is complicated, we want everyone to understand what the Code says about the test. To assess if there's been sexual harassment, the Code tells us to consider:
1) If the harassment is based on sex, gender, or sexual orientation.
2) If the behaviour was unwelcome.
3) What the behaviour was and how serious it was.
4) How it affected the employee.
It is important to understand that, when deciding if sexual harassment has taken place, the person making the assessment will have to consider each of these four factors in detail. The Code also gives guidance to how each of these should be evaluated.
Every employer should have a sexual harassment policy that tells its employees what sexual harassment is, how to report it, and what the employer will do once sexual harassment has been reported. Employers must make sure that their sexual harassment policies are in line with the Code and their obligations under South African labour and other law.
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