CODE OF GOOD PRACTICE ON THE PREVENTION AND ELIMINATION OF HARASSMENT IN THE WORKPLACE

The Code of Good Practice on the Prevention and Elimination on Harassment in the Workplace (Code on Harassment) was introduced on 18 March 2022. It was developed following the introduction of International Labour Organisation Convention No 190, which came into force on 25 June 2021 (Convention). The Convention is the first international treaty to recognize the right of everyone to a world of work free from violence and harassment, including gender-based violence and harassment.

GUIDING PRINCIPLES

Section 60 of the Employment Equity Act requires employers to take steps to prevent all forms of harassment in the workplace.

It is important that employers conduct an assessment of the risk of harassment that employees may be exposed to while performing their duties.

Employers ought to approach harassment on a "zero tolerance" basis and should create and maintain a working environment where the employee's dignity is paramount.

Employees should feel comfortable to raise complaints without fear of reprisal or retaliation or that their complaints will be trivialised or ignored.

The Code on Harassment addresses all forms of harassment and bullying in the workplace, including Sexual Harassment and Racial, Ethnic or Social Origin Harassment.

ACHIEVING A WORKPLACE WHICH IS FREE OF HARASSMENT, AS FAR AS POSSIBLE

Employers ought to do the following in order to achieve, as far as possible, a workplace that is free from harassment:

• ensure that the necessary procedures are in place to identify possible harassers from entering the workplace during the recruitment period. This would include:
  • investigating employee's reasons for leaving their previous employer;
  • reviewing their social media practices with a view to identifying any concerning conduct;
  • determining their views on harassment during the interview process utilising hypothetical scenarios;
  • informing prospective employees of the employer's policy in relation to harassment (zero tolerance) and requesting their views;
• ensure that current employees appreciate and understand what harassment means and what it entails. This would involve:
  • drafting and / or updating the current sexual harassment policy to include details relating to bullying and harassment more generally;
  • sending employees regular (quarterly) written communications relating to harassment;
  • conducting regular (at least twice a year) awareness training sessions with employees with a view to educating them in relation to harassment;
  • requiring employees to complete online training sessions in relation to harassment upon commencement of employment and during the course of employment at least once a year;
  • providing employees with details of where the harassment policy may be accessed;
  • invite well known speakers and experts on the subject to address employees whether virtually or in person;
  • making it a term and condition of employment that employees familiarise themselves with the harassment policy by specifically including it in all employment contracts;
• ensure that employees who wish to lay a complaint can do so with the confidence that their complaint will be treated urgently and confidentially:
  • create a platform (whether digital or manual) which an employee can easily access for the purposes of making a complaint if the employee wishes to do so in writing;
  • ensure that the employer's human resources team has a dedicated person(s) who can be approached at any time on a strictly confidential basis for the purposes of raising a complaint. In this regard, it is important for the employer to satisfy itself that human resources is a source of comfort and safety for employees and there is no sense that human resources cannot be trusted with confidential information;
  • prioritise the confidential nature of the complaint;
• ensure that employees appreciate and understand that the employer takes complaints of harassment seriously. This can be done by:
  • obtaining the advice of external employment law advisers on an urgent basis so they can analyse the complaint and assist the employer. In the event of a dispute for whatever reason, the employer's decision to engage outside counsel will weigh in the employer's favour as it will indicate that the employer has taken the complaint seriously and wants to ensure a legally sound outcome for all parties;
  • taking swift disciplinary action against employees who commit harassment.

IMPORTANT POINTS TO NOTE

Employers are obliged to protect employees from harassment in any situation in which the employee is working including, but not limited to:

• the public and private spaces in which employees perform their work;
• places where the employee is paid, takes a break or has a meal, uses washing, changing, sanitary, breastfeeding or medical facilities;
• work-related travel, training, events or social activities;
• work-related communications;
• employer-provided accommodation;
• transport to or from work provided or controlled by the employer.

The Code on Harassment extends to applicants for employment and those who may be presumed to be employees in terms of the applicable legislation, i.e. independent contractors.

Harassment may be a pattern of persistent conduct or a single instance or event and can include physical, verbal or psychological conduct. It is defined in the Code as including:

• spreading malicious rumours;
• conduct which humiliates or demeans;
• sabotaging the performance of work;
• demotion without justification;
• surveillance of an employee without their knowledge and with harmful intent; or
• abusive use of disciplinary proceedings.

Bullying, which is the abuse of coercive power in the workplace, can also take a number of forms including:

• intimidation;
• passive-aggressive behaviour such as negative gossip, sarcasm, marginalisation and deliberately causing embarrassment; and
• cyber-bullying (online harassment)

CONCLUSION

Prior to the introduction of the Code on Harassment, most employer's main focus was on sexual harassment as a form of unfair discrimination in the workplace and the requirement to ensure, as far as possible, that employees were protected from sexual harassment in the workplace. The Code on Harassment, critically devotes an entire chapter to sexual harassment, but makes it clear that other forms of harassment and bullying should not be ignored.

For more information, please contact Jacqui Reed or your usual Herbert Smith Freehills contact.