Workplace harassment is one of the oldest forms of discrimination in modern society. One that has been largely overlooked on international level up until recently. With the emergence of several high-profile cases and the #MeToo movement, various investigations and revelations have laid bare the scourge of sexual harassment. Dangerous predators like Jeffrey Epstein, Harvey Weinstein, and their associates have found themselves on the wrong side of the law and punished for their abusive activities. Yet the global community has only begun to see depth and breadth of harassment in a serious light. The proverbial tip of the iceberg. Harassment takes many forms, for more than sexual harassment alone.
In the past, workplace harassment has primarily been framed in that context. The Employment Equity Act guided employers largely in terms of sexual harassment in working environments. However, the South African government has taken a bold step forward in recognising the wider scope of harassment and implementing legislation to combat the broader problem.
On 18 March 2022, Minister Thembelani Nxesi published the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in the Government Gazette Nr. 46056. The Minister repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace and replaced it with the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.
This new code identifies different types of harassment in the workplace and how to deal with them. While aiming to promote a workplace environment where employees feel safe and protected, it has also significantly changed employer roles and responsibilities.
In this first article that forms part of a two-part series by (SA)UEO on the subject, we look at the impact of workplace harassment and the legal foundations of the new legislation.
What is the basis of workplace harassment?
Under the new definitions, harassment may be far more widespread than employers have previously imagined. While vigilance on site in monitoring visible incidents has hitherto been the basis of compliance, employers must now seek to be aware of less obvious forms of harassment and incidents that may take place away from the work premises.
Employers are generally familiar with forms of overt harassment, like physical aggression and the threat of violence, but may also now be held accountable for covert harassment. These are things not brought to their direct attention, like sarcasm, condescending eye contact, facial expressions, gestures, and mimicking.
This also now includes harassment perpetrated by third parties, such as customers or consultants over which the business may have little to no control.
Definition of harassment:
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.
Harassment constitutes an abuse of power.
Scope of harassment:
Employers are expected to be acutely aware of incidents on the grounds any of the following:
- Race, gender, sex, pregnancy, marital status, family responsibility, ethnic/social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and/or birth.
It is designed to protect all employees, especially the following vulnerable groups:
- Women, people from specific ethnic groups, disabled people, people from specific religious groups, LGBTQIA+ groups, and people living with HIV, amongst others.
Symptoms of harassment:
Behavioural red flags to be on the lookout for:
- Poor Performance – Staff appear to be experiencing difficulties to focusing on their duties.
- High Absenteeism – Staff appear to be increasingly reluctant to come to work.
- Low Morale – Staff appear to be generally unhappy or motivated purely by income they cannot afford to lose.
- More Grievances – Staff appear to bring more complaints to bear in general, not just sexual harassment.
- Code of Silence – Staff appear to be more reluctant to share information or identify perpetrators.
- Environment of Fear – Staff appear to avoid each other or particular people who may perpetrators.
- Erratic Behaviour – Staff appear to suddenly undergo psychological change, acting differently from their usual selves.
- More Resignations – Staff turnover increases overall, in both the short and long term.
Types of harassment:
More obvious behaviours for employers to be cognisant of:
- Intolerance – Prejudice against anyone for any of the above reasons.
- Gossip – Idle talk or rumour mongering.
- Slander – Making false or damaging statements about anyone.
- Condescension – Contempt for anyone, which can include both covert and overt behaviours.
- Vindictiveness – Jokes, gags, or pranks directed at anyone.
- Humiliation – Shaming or diminishing anyone, injuring dignity or pride.
- Sabotage – Withholding important work-related information or interfering with anyone’s work.
- Exclusion – Ostracizing or boycotting anyone, excluding anyone from normal day-to-day activities.
- Threats – Intimidation of any kind, from physical injury to false accusations.
- Spying – Surveillance of anyone without their knowledge.
- Demotion – Punitive change of designation or position without objective cause.
- Sanctions – Punitive disciplinary or administrative measures without objective cause. Abuse of hearings and warnings issued.
- Pressure – Forcing an anyone to participate in illegal or unreasonable activities, interference with legal rights. Pressuring an employee to resign.
Failing to be aware of these indicators can also result in a sudden crisis, an internal #metoo movement after the first victim scrapes together the courage to come forward with whatever harassment that they have been subject to. On top of fines and related legal issues dependant on the form of harassment and failure to comply to the Code.
What is the basis of the new legislation?
Main legal framework
Consists of the following:
- 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)
- Regulates equity and fairness in the workplace.
- Section 6(1) of the EEA prohibits unfair discrimination directly or indirectly, against an employee, in any employment policy or practice, on one or more of the grounds mentioned above, or on any other arbitrary grounds.
- Section 54 of the EEA empowers the Minister of Employment and Labour to issue Codes of Good Practice on the advice of the Commission for Employment Equity (CEE).
- International Labour Organization (ILO) Convention 190 (C190)
- Seeks to eliminate violence and harassment on the workplace.
Supplementary legal framework
Considers the following acts in relation to the Code of Good Practice:
- Labour Relations Act
- Occupational Health and Safety Act
- Protected Disclosures Act
- Promotion of Equality and Prevention of Unfair Discrimination Act
The workplace is no longer considered to be just the physical premises where employees perform their work. Areas where the employer may not have direct control, such as employer-provided transport to work or workers living at employer-provided premises, are now also included in the Code.
The Code is also not just applicable to employees of the organization. Contractors, customers, consultants, family members of employees as well as suppliers may all be involved in harassment cases. The employer may not have direct control over all these role players either.
Lastly, the employer may be compelled to make provisions for victims of harassment such as granting additional sick leave, paying for trauma counselling if it is not covered by a medical aid or covering medical expenses.
More info or assistance
In part II of this series, we will look at some of the critical potential workplace consequences of these amendments for the employer. In the meantime, for expert assistance or templates of risk assessments and policies to help ensure compliance with the new legal framework, feel free to contact our General Secretary Elise Coetser on firstname.lastname@example.org.