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

The long-awaited Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace came into effect on 18 March 2022. The Code replaces the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace and seeks to address the prevention, elimination, and management of all forms of harassment in the workplace.

Written By and of Cowan-Harper-Madikizela Attorneys

In accordance with the Code the workplace now includes employees who work virtually from their homes or any place other than the employer’s premises. Although this development has been necessitated by the new world of work, it has vast implications for employers particularly in view of the Occupational Health and Safety Act.

The Code defines harassment as unwanted conduct which impairs dignity, creates a hostile or intimidating environment, and is related to one or more of the prohibited grounds of discrimination, including an arbitrary ground as defined in the Employment Equity Act. The Code distinguishes between harassment, sexual harassment, racial harassment and social origin harassment. In accordance with the Code harassment now includes withholding work-related information, intolerances, bullying, negative gossip, sarcasm, condescending eye contact and social exclusion.

The test for harassment is considered from the perspective of the complainant subject to the views of a reasonable person in the situation of the complainant. It is therefore an objective test with the primary focus being on the impact of the conduct on the complainant. It is not necessary to establish the intention or state of mind of the harasser/perpetrator.

Employers should implement a zero-tolerance approach to harassment in the workplace and adopt policies which provide guidelines, outline procedures and consequences for the effective administration of harassment cases. Employers should also, where applicable, implement awareness training to educate employees at all levels about harassment.

As a result of the adoption and implementation of the zero-tolerance approach presented by the Code, employers and employees ought to be very conscious of the way in which they conduct themselves in the workplace as a mere condescending eye contact or sarcasm could ultimately result in a complaint of harassment. Sensitivity and respect for another person’s dignity is vital for avoiding harassment claims.

Tanya Mulligan

Tanya Mulligan
Partner in Employment Law, Benefits, Industrial Relations and Discrimination

Gael Barrable

Gael Barrable
Partner in Employment, Benefit, Industrial Relations and Discrimination

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