On 18 March 2022, South Africa’s Minister of Employment and Labour gazetted the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“the new Code”), which replaces the 2005 Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (“the old Code”).
The new Code, which is more extensive than its predecessor, includes the following notable changes:
- The framing of ‘harassment’ recognises the intersection of factors which may increase the risk of harassment, such as race, religion, gender, or disability;
- A broadened list of types of harassment; which includes LGBTQIA+-phobic language, as well as passive-aggressive or covert harassment such as negative joking at another’s expense, saracasm, condescending eye contact or gestures, negative gossip, deliberately causing embarrassment or insecurity, and social or professional exclusion;
- In the course of establishing whether there has been harassment, and for the purposes of the Employment Equity Act, it is not necessary to establish the intention or state of mind of the alleged harasser/perpetrator;
- Acknowledgment that an act or threat of violence is not an essential element of harassment;
- Acknowledgment that harassment may either occur as a result of a pattern of persistent conduct or that it may be a single instance or event; and
- A new section dealing with racial, ethnic or social origin harassment as well as an objective test to establish whether there has indeed been racial harassment.
Significantly, the new Code explicitly recognises online harassment, cyber-bullying, and covert surveillance of an employee with harmful intent, as possible expressions of workplace harassment. Furthermore, according to the new Code, employees who work virtually from their homes or any other place other than the employer’s premises are to be protected against harassment.
The four factors which are to be taken into account to establish whether there has been harassment remain the same: namely, whether the harassment is on the prohibited grounds of sex, gender, and/or sexual orientation; whether the sexual conduct was unwanted or unacceptable; the nature and extent of the sexual conduct, and the impact of the sexual conduct.
- The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace is accessible here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].