Harassment in the workplace: Are your policies up to code?
The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (new Code) became effective on 18 March 2022, replacing entirely the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (old Code). The new Code gives effect to South Africa's recent ratification of the International Labour Organisation Convention 190 and provides a framework and accompanying guidelines for employers and employees to attain a workplace free of harassment and violence.
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These developments will require a total overhaul of sexual harassment and harassment policies that South African employers currently have in place as well as how these policies are implemented. Any policies that: fail to address persons who perpetrate harassment or those subjected to it; fail to grapple with the various forms of harassment that can occur in the workplace and outside of the workplace; and which lack the necessary information regarding the more expansive test for sexual harassment.
The provisions of this new Code are broader than the old Code with far-reaching effects. Most notably the new Code:
The new Code also alludes to the creation of an approach to dealing with harassment cases that is not rigid and is more holistic. Such an approach requires the employer to consider the implementation of: better education and information regarding harassment, particularly sexual harassment; training as to how to properly deal with and counsel complainants of sexual harassment; an inquiry into the sexual harassment that is inquisitorial rather than adversarial; and a workplace environment that is aware of harassment and its effects and that does not enable perpetrators to harass, but rather enables complainants to speak up without fear of reprisal.
Given the prevalence of all forms of harassment in the workplace, employers must ensure that they take active steps to prevent and eliminate harassment in the workplace lest they become liable for damages in terms of vicarious liability. This risk of such liability is greatly increased under the new Code particularly for those employers who neglect to update their policies and practices in this regard.
Employers need to cultivate a workplace culture that focuses on educating all employees on the seriousness of harassment in the workplace and training persons in the human resources department on how to appropriately deal with complainants in cases of harassment striving toward a safe and respectful work environment, free of discrimination for all employees.
About the author
Pamela Stein, Partner, Joani van Vuuren, Senior Associate & Jamie Jacobs, Associate from Webber Wentzel