Any workplace can easily become a hostile environment. After all, it’s a pressure-cooker of different people and cultures, both in their professional and their personal capacities, working to deadlines and demands that can be incredibly stressful. Especially during trying economic conditions with things like the lockdowns and loadshedding eating away at productivity.
In these competitive working conditions (and not forgetting our historical and current political and cultural contexts), it is possible to imagine how even occasional acts of unchecked passive aggressive behaviour or disagreements can gradually devolve into a toxic work environment where harassment can become the norm.
In this regard, Minister Nxesi published the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in the Government Gazette Nr. 46056 on 18 March 2022.
What do businesses really need to know?
The legal framework
The Constitution of the Republic of South Africa
The South African Constitution protects the right to dignity, equality, and fair labour practices in terms of the Bill of Rights and the Employment Equity Act, which includes the elimination, prevention, and management of all forms of harassment, including gender-based harassment, in the workplace.
The Employment Equity Act, 1998 (EEA)
Existing Prohibition of Unfair Discrimination
- (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including 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 and birth.
(2) It is not unfair discrimination to –
(a) take affirmative action measures consistent with the purpose of this Act: or
(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
(3) Harassment of an employee is a form of unfair discrimination and is prohibited on any one or a combination of grounds of unfair discrimination listed in subsection (1).
- (1) The Minister may, on the advice of the Commission –
(a) issue any code of good practice; and
(b) change or replace any code of good practice.
New Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace
The Minister invoked Section 54 (1) (b) of the Employment Equity Act, 1998 (Act No 55 of 1998) based on the advice of the Commission for Employment Equity (CEE) and revoked the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, 2005 (Government Notice No. 1357 in Government Gazette 27865 of 4 August 2005).
He replaced it with the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which aims to identify different types of harassment in the workplace and how to deal with them more comprehensively than before, as well as increasing the scope beyond sexual harassment alone.
The new Code of Practice
How is harassment defined?
Harassment is defined as unwanted conduct which impairs dignity. It leads to a hostile or intimidating work environment where vulnerable employees are unable to perform to their potential. South African law considers all forms of harassment as unfair discrimination and in contravention of the Employment Equity Act (EEA).
Harassment constitutes an abuse of power. Some examples of harassment include:
- Violence or physical abuse
- Emotional abuse
- Sexual abuse
- Gender-based abuse
- Racial abuse
Who is specifically protected by the code?
Although the code protects all employees, some people or groups of people are regarded as being particularly vulnerable to harassment.
These vulnerable groups are:
- People from specific ethnic groups
- Disabled people
- People from specific religious groups
- LGBTQIA+ groups
- People living with HIV
Overt vs. covert harassment
Overt harassment is behaviour that is easily observable. Violent behaviour or a direct threat of violence would constitute overt harassment. Identifying covert harassment is far more challenging.
The perpetrator may victimise a target in ways that may go unnoticed such as:
- Negative gossip
- Negative joking
- Condescending eye contact
- Facial expressions
- Gestures and mimicking
Implications for the workplace
The EEA has been the primary tool to manage harassment in the workplace for some time.
In the past, most cases were sexual harassment as it specifically targeted this type of unwanted conduct. However, most employers have also already become sensitive to many forms of harassment, with policies and procedures in place to deal with the matter. With the scope increasing even further, employers must be more vigilant than ever.
What is management expected to be on the lookout for?
- Gossip amongst employees and management.
- Jokes being told about a specific person.
- Slandering an employee. Given degrading names.
- Conduct that humiliates, insults, and demeans an employee.
- With-holding important work-related information.
- Sabotage an employee’s work.
- Ostracising an employee.
- Boycotting an employee.
- Excluding an employee from normal day-to-day activities.
- Threats of charges to be filed against the employee.
- Intolerances of physiological medical disability.
- Surveillance or spying on an employee without their knowledge.
- Use of disciplinary or administrative sanctions without objective cause.
- Demotion without any reason.
- Abuse of hearings and warnings issued.
- Pressuring an employee to participate in illegal activities or not to exercise his/her legal rights.
- Pressuring an employee to resign.
With the code identifying so many new forms of harassment, the question arises as to whether they can be practicably applied. A workplace is already very busy and complex in terms of rules and regulations imposed on employers and employees alike. In many instances, it is good to extend and broaden overly specific laws, but to simply add a myriad of new ‘wrongs’ also does not automatically qualify the action as perfecting that piece of legislature. While ostensibly a moral obligation, it may simply be too much to monitor in the end. If the new code is to be followed to the letter, then it will likely depend upon designated employees being appointed to constantly monitor the actions of their fellow employees. In itself, this pervasive act of ‘simply checking’ can also be seen as a form of harassment. It may well be for the courts to decide.